
    Catherine O’Shaughnessy, Respondent, v. The Workingman’s Co-operative Association of the United Insurance League of New York, Appellant.
    (New York Common Pleas — General Term,
    June, 1895.)
    By moving for the direction of a verdict in his favor a party concedes that there is no question of fact for the jury.
    To avoid a policy of life insurance it must be proved affirmatively that there was a false statement in the application of a material fact by which the company was fraudulently induced to accept the risk.
    Where the insured denied in the application that he had been sick or had rheumatism, proof of one or two visits from a physician for some illness which he will not testify was rheumatism is insufficient to avoid ttte^ policy, especially where the jnsured died from some cause in no way attributable to that disease.
    Appeal from, a judgment of the General Term of the City Court, affirming a judgment entered in favor of the respondent at Trial Term.
    
      W. B. Bonihee, for appellant.
    
      W. E. Morris, for respondent.
   Bookstaver, J.

The respondent contends that we ought not to review the questions of fact in this case, inasmuch as the case does not include a certificate that it contains all the evidence upon the trial. This, however, makes practically little difference, as, at the close of all the evidence, the defendant moved for the direction of a verdict in its favor, thereby conceding there was no question of fact for the jury.

The complaint alleges that the defendant is a domestic corporation, conducting the business of life insurance in the city of Aew York; that on the 4th day of July, 1892, in consideration of a joining fee of five dollars, three dollars annual dues and assessments at the rate of sixty-five cents, it entered into a contract of insurance and issued its certificate of membership Ao. 1154 under the seal of the corporation, etc., whereby it agreed to pay to the plaintiff the sum of $500 thirty days after satisfactory proof of the death of Catherine Clifford had been furnished to the officers of the association, if during her lifetime she had complied with the terms of the contract of insurance; that she died in the city of Aew York in 1893, while the contract of insurance was in full force, and that due proof of her death was presented to the defendant, and that more than thirty days had elapsed since the presentment of proofs of death; that by reason of the premises there was due from the defendant to the plaintiff the sum of $500, which had not been paid, although duly demanded, and prayed judgment accordingly. The answer alleged that the policy was null and void from the beginning by reason of false and untruthful answers given by the insured to questions and interrogatories set forth in a printed application made to the company and signed by the insured, which constituted the basis of the contract between the parties, and denied each and every allegation of the complaint not consistent with the answer. Such a denial, if good for any purpose, did not put in issue any of the allegations of the complaint, except, possibly, that the plaintiff was the beneficiary under the alleged policy and the amount due thereunder. The court, therefore, was justified in denying defendant’s motion, made when the plaintiff rested, to dismiss the complaint, as the defense was an affirmative one, to be proved by the defendant. Thereafter the defendant put in evidence the plaintiff’s proofs of death, the application of the insured for a policy of insurance, the physician’s certificate and certain by-laws of the defendant, and called the attending physician, who was examined as a witness, but failed to testify very clearly as to what disease he had attended the deceased for at a time prior to the issuing of the policy. The original application for insurance was in the handwriting of the president of the defendant, and was signed by the mark' of the deceased only. After some further testimony by the plaintiff both parties rested, and defendant moved for the dismissal of the complaint or the direction of a verdict in its favor, on the ground that by the application of the insured upon which the policy was issued it appeared she was asked whether she had been sick at any previous time and had any physician attending her for any previous illness, and the name of the physician, and she had answered she had not been sick and had no attending physician, and that it had been shown by the evidence that the insured had been ill previous to the date of the application, and had had an attending physician who had prescribed for her. This was denied, and brings up the principal question in the case. It is conceded that the, application which the insured signed when asking for a policy of insurance forms a part of the contract and sets forth the conditions on which the policy was issued, one of which was that “ all answers in the application must be true or the certificate will be void,” as they constitute the basis of the contract between the member and the association. Among the questions asked were the following : Q. When last sick ? A. Never. Q. Of what disease. A. None. Q". Name of physician who last attended member proposed and when? A. None. Q. Has member ever had (if so give particulars) rheumatism? A. No. * * * Q. Has applicant withheld any material facts about the member proposed? A. No.” The affidavit of the plaintiff contained in the proofs of death states that Dr. McLaughlin attended the insured for inflammatory rheumatism in the hands in the summer of 1891, before the application for insurance was made, and that he made her one visit. ' The doctor testified that he had visited the insured on two occasions in 1891 and attended her ■during the last illness; but could not testify as to the nature of the illness from which she suffered when he visited her in 1891 further than, judging from the prescription which he gave, he inferred that it was for rheumatism, but whether inflammatory or otherwise he does not state. He further testified that he treated the insured during her last illness, and that she' was not then suffering from rheumatism, and had no signs of it to his knowledge ; and ih his certificate he stated the cause of death to be senile dementia—exhaustion.

In order to avoid a policy of insurance it must be proved ■affirmatively that there was a false statement in the application of a material fact, by which the defendant was fraudulently induced to accept the risk; and we think one or two visits from a* physician for some illness which he would not testify was rheumatism is too trifling to be regarded as sufficient to avoid the policy, especially in view of the fact that the insured died from a cause in no way attributable to the rheumatism if there ever had been any. Spitz v. Mut. Ben. Life Assn., 5 Misc. Rep. 245; 25 N. Y. Supp. 464, 475. The plaintiff testified as to the way in which she was induced to make the affidavit she did in regard to the deceased suffering from rheumatism in 1891; and the physician also testified as to the way in which he was induced to give the certificate of ■death he did. This testimony, together with other facts in the case, raised a question of fact as to whether the plaintiff had ever suffered from rheumatism to be determined by the jury, had that right not been waived by the defendant and had. he not expressly consented that all the questions, both of fact and law, should be determined by the court. There was certainly quite sufficient evidence to warrant the court in arriving at the conclusion it did upon that question, and its findings are conclusive upon us. Provost v. McEncroe, 102 N. Y. 650.

After the rendition of the verdict the defendant made a motion for a new trial on the ground, among other things, that the damages were excessive a.nd contrary to the evidence. The only evidence in the case as to the sum realized from the assessment was given by the secretary of the defendant,, •> testified that it amounted to $204 only. The judge at Trial Term directed a verdict for $207 instead of $204, with $12.36 interest. This was three dollars more than it should have been on the principal sum and thirteen cents more than was proper for interest. The judgment must accordingly be reduced by $3.13, and as thus reduced must be affirmed, with costs to the respondent, as it does not- appear from the case that the court’s attention was specifically drawn to this error or it doubtless would have been corrected on the spot.

Bisghoff and Pryor, JJ., concur.

Judgment modified, and as modified affirmed, with costs.  