
    Marie Perrin, Respondent, v. The Prudential Insurance Company of America, Appellant.
    (Supreme Court, Appellate Term,
    February, 1900.)
    Life insurance — Withholding information, not asked, as to occupation, is not a breach of warranty.
    Where the insured answers a question, contained in an application for insurance and relating to his occupation, by the words “ storekeeper, dry-goods ", the fact that he, without fraudulent intent, so far as appeared, neglected to state that he was and had been, from time to time, employed as a glass polisher, does not preclude a recovery on the policy.
    Perrin v. Prudential Ins. Co., 29 Mise. Rep. 597, affirmed.
    Appeal from a judgment of the General Term of the City Court, affirming a judgment entered upon the verdict of a jury, rendered by direction of the court.
    Wm. O. Campbell, for appellant.
    Nathan, Leventritt & Perham (Frederic E. Perham, of counsel), for respondent.
   O’Gorman, J.

This is an action to recover on a life insurance policy, and the defendant challenges on this appeal the propriety of the direction of a verdict for the plaintiff.

In his application the assured gave as his occupation, “ Storekeeper, 'dry-goods.” Upon the trial, the accuracy of this answer was not disputed, but it appeared from the proof offered by the defendant that at the time of the issuance of the policy, as well before as after, the assured was also employed from time to time as a bevel smoother of plate glass. At the close of the entire case the defendant moved for a dismissal, and on the denial of this motion, asked to go to the jury solely upon the question as to whether the answer in the application as to the assured’s occupation was true. The trial justice committed no error in denying this request, as made, and directing a verdict for the plaintiff. Dilleber v. Home Life Ins. Co., 69 N. Y. 262. The answer as to occupation was manifestly true. The assured did not say he had but one occupation. The only criticism that can be passed upon the answer is that it was not complete, but, as was held in the case cited, where there is a partial answer the warranty cannot be extended beyond the answer given. A breach of warranty must be based upon the affirmation of something not true. Fraud, however, may be predicated upon the suppression of truth; and, if requested, it is to be presumed, the court would have submitted to the jury the inquiry as to whether the omission on the part of the assured to refer to his occupation as a glassworker was the result of a fraudulent design to deceive the defendant. No such request was made, and when the defendant, after moving for a non-suit, requested the submission of a specific question of fact to the jury, there was an implied waiver of his right to go to the jury on any other question of fact. First Nat. Bank v. Dana. 79 N. Y. 108.

The judgment should, therefore, be affirmed, with costs.

Beekman, P. J., and Giegerich, J., concur.

Judgment affirmed, with costs.  