
    (69 Hun, 12.)
    MAHANEY v. MUTUAL RESERVE FUND LIFE ASS'N.
    (Supreme Court, General Term, Fourth Department.
    April, 1893.)
    Insurance—Action on Policy—Age—Evidence—Review on Appeal.
    In an action upon a policy of life insurance, where the defense was misrepresentation as to the age of the insured, the plaintiff introduced a number of witnesses, who testified that the insured was, in their opinion, of the age stated in the application. These witnesses were not relatives of the insured. The defendant showed that the insured on two occasions, 11 years apart, had, in applying for a pension, stated her age so as to make her older than the statement in the application, and that the record of the birth of her daughter took place when the insured, according to her application, was only 10 years old.' Held, that a judgment for the plaintiff should be reversed, as contrary to the evidence.
    Appeal from circuit court, Oswego county.
    Action by Eliza Mahaney against the Mutual Reserve Fund Life Association. Plaintiff obtained judgment. Defendant appeals.
    Reversed.
    The action is upon a certificate of membership, issued by the defendant to Catharine Mahaney, the mother of the plaintiff, on the 9th June, 1885, in and by which it was declared that, within 90 days after receipt of satisfactory evidence of the death of the member, there should be payable to the plaintiff, if she was then alive,—otherwise to the legal representatives of the member,—the sum of $1,000 from the death fund of the association, or from any moneys that should be realized to that fund from the next assessment to be made as therein stated. Catharine Mahaney died on the 8th April, 1890, and the proofs of death were furnished "to the defendant on the 23d April, 1890. The defenses relied on are: First, that there has been a breach of a warranty, in the application for membership, that the applicant was born November 10, 1834; and, second, that there was fraud in making the statement as to the age of the applicant.
    Argued before HARDIN, P. J., and MERWIN, J.
    W. H. Kenyon, for appellant.
    Whitney & Bulger and J. B. Higgins, for respondent.
   MERWIN, J.

In the application of Catharine Mahaney for membership in the defendant, it was stated that she was born on the 10th day. of November, 1834, in the county of Waterford, Ireland, and that her age at next birthday, being November 10, 1885, was 51 years. The court charged the jury that, if the age of the applicant was more than as stated, the plaintiff could not recover. The jury, therefore, in finding for plaintiff, in effect found that the age was correctly started. The main point presented by the appellant upon this appeal is that such finding is against the weight of evidence. The applicant and her husband, Gain O. Mahaney, came to this country from England prior to 1860. It was shown by the testimony of Ellen Delong, a sister of plaintiff, and not denied, that the. maiden name of her mother was Catharine Dudley; that she had altogether seven children, three of whom died before she came to this country, and that the other four, who came over with their parents, and are still living, were the witness, the plaintiff, (whom she called Lizzie,) Cornelius, and Mary. In 1862, Cain 0. Mahaney enlisted at Oswego as a soldier in the service of the "United States, and it appears that he died in May, 1878. The defendant puts in evidence an affidavit made by Mrs. Mahaney on the 14th August, 1878, for the purpose of obtaining a pension. This was made at Oswego, before a special agent of the pension office, and was produced by him from the records of the pension bureau, and he testifies that it was written by him at the dictation of Mrs. Mahaney, and that he then read it over to her, and she signed and swore to it. There is nothing in the case to discredit his testimony. In this affidavit Mrs. Mahaney states, among other things, that “her age is 55 or 60 years;” that she was married to Cain “in Chelsea, county of 'Middlesex, England, about in 1842,” and came with her husband to this country in 1857; that her husband, at his death, was about 66 years old. The defendant also puts in evidence another application made by Mrs. Mahaney for a pension on 26th September, 1889. This was filed in the pension office October 3, 1889, and was signed at Oswego, in the presence of two witnesses, and certified to by the county clerk of Oswego county. The deputy clerk who certified to the paper, and one of the subscribing witnesses, were called as witnesses at the trial, and both testified that the paper was at the time read over to Mrs. Mahaney. The evidence of these witnesses was not discredited. In this application it was recited that Mrs. Mahaney was 66 years old, and it stated, among other things, that Cain O. Mahaney, her husband, enlisted at Oswego on the 29th August, 1862, and that she, under the name of Catharine Dudley, was married to him “on the-day of July, 1844, by Rev. Robisson, at London, England.” The defendant also puts in evidence a transcript from the register of marriages of the parish of St. Nicholas, Deptford, of the county of Kent, England, showing that on the 23d May, 1841, Cain Mahoney and Kittie Dudley, both of full age. were married in the parish church by A. E. Kitchley, vicar; also a transcript from the register of births for the subdistrict of South Chelsea, in the county of Middlesex, England, showing the birth, on the 10th March, 1844, of Ellen, daughter of Cain Mahoney and Kittey Mahoney, formerly Dudley; also another transcript from the register of births of the same district, showing the birth on the 24th September, 1849, of Elizabeth, daughter of Cain Mahoney and Catharine Mahoney, formerly Dudley; also another transcript from the register of births for the subdistrict of Chelsea, Northeast, in the county of Middlesex, showing the birth, on the 21st March, 1852, of Cornelius, son of Cain Mahoney and Catharine Mahoney, formerly Dudley. Transcripts of similar entries of births in the general register office, Somerset House, London, were given in evidence, as well as the law providing for the registering of marriages and births, and in pursuance of which the registers were kept. Photographs were also given of the original entries in the registers, and these were verified by the testimony of the person under whose supervision they were taken. Besides these records, the defendant introduced a large number of witnesses, who had been acquainted with Mrs. Mahaney for different periods of time since her arrival in this country, and who gave their opinions as to her age, based upon her appearance as they had observed it, and some of them had heard her speak in general terms of her age. The testimony of these witnesses was to the effect that she was from 10 to 20 years older than she had stated in her application in question.

To rebut this evidence, the plaintiff introduced a large number of witnesses, who had been acquainted with Mrs. Mahaney, to more or less extent, and who, in most instances, placed her age at the time of her death at about 56 years. One of these witnesses, Mr. Cunningham, whose evidence is particularly relied on by the plaintiff, testified that- he had seen Mrs. Mahaney and Cain O. Mahaney in Bristol, England, before 1850, and that they were not married then, that he knew of. He does not profess to give the age of either at that time, except that he says he thinks that Mrs. Mahaney was older than he was. Of himself he says that he was born at Bristol in 1835 or 1837, and made Bristol his home until about 1850, and was 17 or 19 when he left there. Of Cain O. Mahaney he says he saw him in the city of Bristol. “1 didn’t know him long,—perhaps two or three months. I was quite young.” Of Mrs. Mahaney he says that he met her after he knew Cain, and that she then went by the name of Kitty Gaul. He does not state where she lived, except that he understood she lived with some relations by the name of Gaul, in an adjoining parish. He admits testifying upon another occasion that he did not see her at any other place than on the street. He does not say where it was that he first saw Cain, or where Cain in fact lived. This witness is very uncertain in his dates, and while his evidence, standing alone, may throw some doubt as to whether these parties lived in London at the date of the marriage record, it fortifies but very little the proposition that Mrs. Mahaney was born as late as November, 1834.

There appears to be no reason why Mrs. Mahaney, at the time of making the pension applications in 1878 and in 1889, should state her age greater than she thought it was in fact, or place the date of her marriage earlier than it was, according to her then understanding. She evidently had no records to guide her. There is in the case no record evidence of her birth. She was a woman of some education, as she wrote her name to the application of 1878. Both of .those applications are utterly inconsistent with her age being only 51 in November, 1885; and the fact that those applications, although 11 years apart, and taken under different circumstances, are substantially harmonious in the matter of age, adds materially to the weight that should be given to them in the case. The four English records are in the same direction, and, assuming the identity to be established, are entitled to great weight. Ordinarily, identity of name is prima facie evidence of identity of person, (Jackson v. Boneham, 15 Johns. 226; Jackson v. King, 5 Cow. 237;) and a middle letter will be deemed no part of the name, (Milk v. Christie, 1 Hill, 102; Van Voorhis v. Budd, 39 Barb. 479; Arnold v. Bank, 3 Thomp. & C. 769.) Each case, however, will depend largely upon its own circumstances. In regard to the parties to the marriage record, there may be some doubt as to the identity, not only by reason of the evidence of Cunningham, but by reason of different dates being given of the marriage in the pension applications, one stating it as about in 1842, and the other as in July, 1844, and before a different clergyman. But, as to the birth records, a careful consideration of the evidence leaves hardly room for doubt as to the identity. If that be so, and the daughter, Ellen, was born on March 10, 1844, there is scarcely any ground for believing that her mother was born as late as November 10,1834.

There is another consideration that has some bearing. There is evidence that the daughter, Ellen, was married at Oswego in 1862, and that she was then 17 or 18 years old. These facts are not disputed, and the plaintiff was apparently in a position to be able to ascertain whether they were true or not. If Ellen was then 18, that would place her birth- in 1844, as stated in the birth record. It also appears that in a written application by plaintiff for membership in the Flour City Life Association, dated July 29, 1889, and signed by the plaintiff, the age of her mother is stated to be 65. The person who took this application undertakes to say that the age of the mother was not filled in by plaintiff, or from her statements, but his evidence on the subject is not very satisfactory. The plaintiff herself does not speak on the subject. She is not sworn as to the age of her mother, nor are either of her two sisters, though they appear to be accessible. No reason appears why they are not called to speak on the subject. The witnesses upon either side who express their opinion as to the age of the deceased do not appear to be her relatives.

In view of the evidence furnished by the pension applications, by the birth records, and as to the marriage and age then of the daughter, Ellen, and the declaration of the plaintiff, and in view of the necessarily uncertain and inconclusive character of the opinion evidence on the subject of age, we are strongly impressed with the idea that, upon the case as it stands before us, the verdict is against the weight of the evidence.

It is suggested by the respondent that the statements of the as- . sured were not competent evidence against the plaintiff, and that, therefore, they should not be considered on this appeal. On the contrary, we must assume that they were competent; and, if the respondent took any exception to their admission, it' is not now before us. Bridgford v. Crocker, 3 Thomp. & C. 273. As to such evidence, see Steinhausen v. Association, 59 Hun, 336, 13 N. Y. Supp. 36. It follows that a new trial should be granted, upon the ground that the verdict is against the weight of evidence. This will be upon the usual terms in such cases.

HARDIN, P. J.,

(concurring.) Although, as a rule, we do not disturb a verdict founded upon conflicting evidence, (Clemons v. Supreme Assembly, 21 N. Y. Supp. 348.) still, in a case where so much doubt exists as to the correctness of the finding, as is clearly shown by the foregoing opinion, I am disposed to favor another trial, when the parties may, if possible, present more satisfactory evidence upon the vital questions. I therefore vote for a new trial. Judgment and order reversed, and a new trial ordered, upon the payment by the appellant of the costs of the trial, and without costs of this appeal to either party. In case such costs are not paid within 20 days, then judgment and order affirmed, with costs.  