
    Ellen Trudden, as Administratrix, etc., of George Hayes, Deceased, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    
      Insurance — burden of proof in case of a breach of warranty—proofs of death m'e not conclusive — competency of applications to another company, and proofs of death thereunder and a rejection of the applicant by its physician.
    
    Where the sole defense interposed in an action upon a policy of life insurance, issued by the defendant, is a breach of warranty, the plaintiff, in the first instance, is only bound to prove his policy, and the burden of establishing the breach of warranty rests upon the defendant.
    Proofs of death, furnished to the defendant, which, by a stipulation in the application for the policy, are made competent evidence in behalf of the defendant to establish a breach of warranty, are not conclusive against the plaintiff, but may be shown to be either false in fact or mistakenly made.
    Applications for policies of insurance, made by the insured to other companies, are not admissible as constituting admissions against the insured, unless it is first shown by competent testimony that the answers purporting to have been made by the insured were actually made by him.
    The same rule, as to the necessity of primary testimony, obtains as to proofs of death filed with other insurance companies.
    Evidence that the insured was rejected by a physician employed by another company, to which he applied for a policy of insurance, is not competent as showing the insured’s physical condition.
    Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Municipal Court of the city of New Y orle, borough of Queens, first district, in favor of the plaintiff.
    
      Grout, Mayer da Hyde, for the appellant.
    
      Manley dk Wadley, for the respondent.
   Hatch, J.:

This action is brought to recover upon a policy of life insurance issued by the defendant upon the life of George Hayes. The answer, among other things, avers a breach of warranty in the representations and answers in the application made by the said Hayes, upon which the defendant acted and relied in issuing its policy of insurance, and which formed a part of the contract between the defendant and the insured. The specific things wherein it is claimed that there was breach of warranty by the insured are in representing that he had never had disease of the kidneys, that at the date of the application he was in sound health, and that he had not been attended by a physician within two years prior to the application. The answers to these questions as contained in the application for the insurance were in form strict warranties; and if any one or all were in fact false the contract of insurance is vitiated. (Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Foot v. Ætna Life Ins. Co., 61 id. 571.)

The proofs of death which were filed with the company were made by the physician who attended the insured in Ms last illness, and therein is contained the statement that the deceased died of chronic Bright’s disease, and contributing thereto as a secondary cause was uraemia pulmonary oedema. It was further stated by the physician that he attended the insured for acute kidney disease on the 1st day of December, 1897, and that the duration of the attack was two and a half months. The policy bore date September 2, 1898. So that if such statements as are contained in the proofs of death were true as matter of fact, then it would follow that there was breach of warranty of the statements that the insured had not, prior to the application, had kidney disease, and that he had not been attended by a physician witMn two years prior to the date of the application. The proofs of death were competent evidence to establish the breach of warranty. They were made evidence by express stipulation in the application, and are recognized as competent evidence in support of the claim that the representations and warranties were false. (Kipp v. Metropolitan Life Ins. Co., 41 App. Div. 298.)

It is qrnte true that the defense interposed in this action was an affirmative defense, the burden of establishing which rested upon the defendant. (Dougherty v. Metropolitan Life Ins. Co., 3 App. Div. 313.) The proofs of death, while evidence in favor of the defendant upon such questions, are not conclusive, and may be shown to be either false in fact or mistakenly made; and if there be proof in the case contradictory of the statements contained in the proofs of death it would undoubtedly raise a conflict of proof upon which the court would be authorized to find the fact different from that stated in the proofs of death. In the present case, however, the physician who attended the plaintiff in his last illness was called as a witness by the defendant, and testified that he made the proofs of death and verified the same. He was not asked whether the proofs of death and the facts stated therein were true or not. He was asked by counsel for the defendant in respect to certain other proofs of death upon a policy of insurance in the John Hancock Insurance Company, whether the statements therein contained were true or not, and upon objection being interposed such testimony was excluded. But he was not interrogated by either counsel in respect to the truthfulness of the statements made in the proofs of death which were filed with the defendant. If such statements were not true, or if there was any mistake therein, the plaintiff had full opportunity to make examination and correct whatever of error there was therein. Failing in this, we think that, in the absence of all other testimony, it must be taken as a fact established that the deceased was attended by the physician for acute kidney disease within two years prior to the date of the application. This being established, there was a clear breach of warranty of the representations made to procure the insurance, and defeats a recovery thereon.

This conclusion leads to a reversal of the judgment. There were, however, upon the trial several questions relating to the order of proof, and also rulings upon questions of evidence, on which it is perhaps proper that we should express our views as a guide upon another trial.

Under the pleadings in this case the plaintiff was not bound in the first instance to do more than prove her policy, and the ruling in that respect was proper. (Dougherty v. Metropolitan Life Ins. Co., supra.) So far as applications were made by the insured to other companies to procure insurance, such applications were not admissible in evidence as constituting admissions against the insured, unless it was first shown by competent testimony that the answers which purported to have been given by the insured were in fact made by him. Upon such proof being made the applications might be received as part of such statements, and in order to certainly evidence the same. The proof in this case did not answer this requirement, and consequently the applications were properly rejected. We think the same rule must also obtain as to proofs of death filed with other insurance companies. They could not be evidence against the insured in favor of this defendant. Primary testimony as to the cause of death in such case would be required, as there is no statute authorizing their admisión in evidence, nor is any authority called to our attention, holding them to be competent. Neither is it competent to prove a rejection of the insured as showing his physical condition on an application for insurance, by the physician of another company making the examination. If the defendant desires to avail itself of proof respecting such subjects, it must show the condition of the insured by the person who had knowledge thereof; as the fact of rejection, assuming it to exist, would prove nothing. These seem to be the main questions upon which contest was had at the trial.

The judgment should be reversed and a new trial ordered.

All concurred.

Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.  