
    PETER BOOS, Respondent, v. THE WORLD MUTUAL LIFE INSURANCE COMPANY, Appellant.
    
      Evidence—when to he passed upon hy coun't, and when hy jury—Breach of warranty should, he pleaded.
    
    Whether there is any evidence in the case is a question for the court; whether there is sufficient evidence to justify a verdict is a question for the jury.
    In order to avoid a policy of insurance on the ground of a breach of warranty, such breach should be pleaded.
    Appeal from' a judgment in favor of plaintiff, entered on the verdict of a jury at the Kings county Circuit.
    This action was brought by plaintiff, as assignee of a policy of insurance, issued by the defendant upon the life of his (plaintiff ’s) father.
    The defense was that Valentine Boos (the father) had falsely answered certain questions. The General Term, after a review of the evidence, was of opinion that the case was a proper one to be submitted to the jury, and affirmed the judgment, with costs.
    
      Joshua M. Van Cott and Wm. P. Prentice, for the appellant.
    
      John H. Bergen, for the respondent.
   Opinion by

Gilbert, J.

Present — Gilbert and Tappen, JJ.

Judgment affirmed, with costs.  