
    Benjamin Bonacci, Individually and as Administrator, etc., of Margaret Bonacci, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant.
    Fourth Department,
    November 21, 1934.
    
      Arthur J. Foley, for the appellant.
    
      Salvador J. Capecelatro, for the respondent.
   Per Curiam.

The life insurance policies involved specify that the insured must be- in sound health at the date of the policies. This action is brought under the unusual claim (1) that not only at the date mentioned but at the time the written applications were executed by the insured she was suffering from tuberculosis to her knowledge and that of the company's agent; and (2) that the agent had authority to waive for the company and did waive the policy provisions as to health. The policies were dated July 27, 1931, and the insured died of tuberculosis January 2,1932. Defendant offered in evidence conversations between the insured and the agent and the written applications (the latter not as a part of the contracts since they were not attached to the policies) to show that both in the conversations and the applications the insured claimed to be in sound health. Such evidence had a material bearing upon the question whether or not the agent knew that the insured was in unsound health — a question sharply litigated and of essential importance. The witness was not disqualified under section 347 of the Civil Practice Act (Conley v. Powell Corporation, 212 App. Div. 324), and the rejection of this evidence was error of such a material character that a new trial should be had.

All concur. Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.

Judgment and order reversed on the law and new trial granted, with costs to the appellant to abide the event.  