
    Mary Clemans, Resp't, v. The Supreme Assembly, Royal Society of Good Fellows, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Benefit societies—Fraud in application.
    The defendant society defended an action on its certificate on the grounds that the deceased misstated his age in his application and falsely stated that he had never been rejected by any insurance company. The evidence as to age was conflicting, and there was evidence to the effect that defendant’s agent had made an applLation for deceased to another company which had been rejected, but that he concealed the fact of such rejection from deceased. Held, that a verdict for plaintiff would not be disturbed.
    Appeal from judgment; in favor of plaintiff, entered on verdict.
    This action was brought to recover the sum of $3,000 on a certificate issued by the defendant to this plaintiff on the life of Patrick Durnin. Patrick Durnin died November 5, 1888. The plaintiff thereupon made due and proper proofs of the death, and so forth, of said Patrick Durnin to the defendant, as required under its by-laws, and this fact is alleged in the complaint, and not denied in the answer, and, therefore, stands admitted. The defendant defends this action upon two grounds: 1. That the said Patrick Durnin in his application for insurance to this defendant made false statements as to his age. 2. That in such application he made a false statement claiming never to have been rejected bv any other insurance company, when in fact he had been so rejected. This made an issue which was submitted to the jury, and the jury found in favor of the plaintiff.
    The age of said Durnin was proven by his daughter to be as he stated in his application for insurance to the defendant. It was a fact that said Patrick Durnin had been previously rejected for insurance by another company, and the fact that lie was so rejected was not known to said Durnin by reason of the defendant’s agent, Simon Jacobs, having fraudulently kept the fact from him. The defendant’s agent, Simon Jacobs, was present when the application was made to the defendant for insurance, and answered part of the questions. Simon Jacobs was the supreme deputy of the defendant at the time that the said Durnin was taken as a member, and at the time he applied to the defendant for insurance, and substantially represented the defendant, in fact was one of the officers of the defendant. The proof on the part of the plaintiff shows that said Simon Jacobs was the agent of the Prudential Life Insurance Company, the one that rejected the said Patrick Durnin, and as such applied for insurance for said Durnin in said company; that said application was rejected, and that said Simon Jacobs instead of notifying said Patrick Durnin, told him that he had withdrawn the application for insurance, and would insure the said Patrick Durnin with the defendant, he being at that time a deputy trying to organize an order in Poughkeepsie of said defendant; that thereafter such order was organized, and the said Simon Jacobs was present when this plaintiff and said Patrick Durnin were being examined for insurance in said defendant ; that said Simon Jacobs knew that said Patrick Durnin had been rejected, but fraudulently concealed the same.
    
      W. R. Spooner, for app’lt;
    
      O. Morschauser, for resp’t.
   Barnard, P. J.

The proof of the age of Patrick Durnin was conflicting. The jury has found that there was no misrepresentation as to the age of the deceased. The proof was sufficient if credited by the j ury to establish that Simon Jacobs, the agent of the defendant, fraudulently concealed from the deceased the fact that he had been rejected by the Prudential Life Insurance Company as a member. Jacobs was the agent who made the application to the Prudential Company. The verdict of the jury is in favor of this fact, and is well supported by the evidence- and such finding is sufficient to free the deceased from any misrepresentation in that respect. Clemans v. Supreme Assembly, &c., 131 N. Y., 485; 43 St. Rep., 571.

The judgment and order denying new trial should be affirmed, with costs.

Pratt, J.

The questions of fact were fairly left to the jury, and the testimony sustains the verdict. There is no ground upon which the court can interfere.

The circuit judge charged the jury in accordance with the law as declared by the court of appeals upon the first appeal.

Judgment affirmed, with costs.

Dykman, J., not sitting.  