
    Jessie Cohen, Respondent, v. The Metropolitan Life Insurance Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1914.)
    Insurance (life) — contracts of — action for breach of warranty — evidence— exclusion of.
    Under section 58 of the Insurance Law, every policy of life insurance must contain the entire contract, and in an action thereon breaches of warranty in the application, which was not attached to the policy, are not available as a defense, in the absence of fraud.
    A breach of warranty in a policy of life insurance that the insured had not before its issue been attended by a physician for any serious disease or complaint, and had not had any pulmonary complaint, is a defense to an action on the policy.
    Where a policy of life insurance contains a stipulation that the duly filed proofs of death shall be evidence on behalf of the company, the physician’s certificate therein is competent evidence as plaintiff’s admission of material facts, and the exclusion of said certificate is reversible error.
    Appeal by defendant from a judgment' of the Municipal Court of the city of New York, borough of •Manhattan, second district, in favor of plaintiff for $265 damages, besides costs, entered after a trial by the court.
    
      Edward M. & Paul Grout (F. Sidney 'Williams, of counsel), for appellant.
    Greenthal & Greenthal (William Greenthal, of counsel), for respondent.
   Guy, J.

This action was brought upon a policy of life insurance upon the life of plaintiff’s husband, which was issued June 24, 1912. It provided among other things: “ This policy contains the entire agreement between the company and the insured and the holder and owner thereof.”

The defense was a breach of two warranties in the separate application for insurance, one of which warranties, viz., that prior to the issue of the policy the assured had not been attended by a physician for any serious disease or complaint, and had not had any pulmonary disease, is also contained in the policy itself; both breaches were' admitted in the proof of-claim.

. Since 1909, every insurance policy has been required to contain the entire contract of assurance, and nothing shall be incorporated therein by reference to any application or other unattached or unendorsed paper. Ins. Law, § 58 ; Becker v. Colonial Life Insurance Co., 153 App. Div. 383, 385, 387. In the absence of sufficient proof of fraud, this would dispose of the defenses based upon breach of warranty in the application for the policy.

A more serious question is raised as to the breach of the warranty in the policy itself.

The policy provided among other things: “ Proofs of death under this policy-shall be made upon blanks fro be furnished by the company and shall contain answers to each question propounded to the claimant, physicians and .other persons, and shall contain the record, evidence and verdict of the Coromer’s inquest, if any be held. All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against the Company.”

The proof of claim signed by plaintiff’s mark was admitted. In a vague and utterly inconclusive way, while not denying her mark, she disputed its accuracy. But the attending physician’s certificate in the proofs of claim, which it is clearly proved plaintiff acknowledged and identified after she had filed or caused it to be filed with defendant, was excluded and defendant excepted.

A breach of the warranty in the policy that the insured had not before its issue been attended by a physician for any serious disease or complaint, and had not had any pulmonary complaint, is a defense. Trudden v. Metropolitan Life Ins. Co., 69 App. Div. 392 ; 50 id. 473 ; Kaspyrzk v. Metropolitan Life Ins. Co., 79 Misc. Rep. 263, 264, 270, 271 ; Harmon v. New York Life Ins. Co., 81 id. 228.

Under the stipulation of the policy, that the proofs of death filed.by the beneficiary, including physicians’ statements, shall be evidence in behalf of the company, the doctor’s certificate therein was competent evidence for the defense as plaintiff’s admission of material facts (Kipp v. Metropolitan Life Ins. Co., 41 App. Div. 298, 300 ; Hanna v. Connecticut Mut. Life Ins. Co., 150 N. Y. 526, 530 ; Spencer v. Citizens M. L. Ins. Co., 142 id. 505, 509 ; Insurance Co. v. Newton, 22 Wall. 32, 35, 36), and the exclusion thereof was reversible error.

Page and Whitaker, JJ. concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  