
    Jacob C. Heintz, Respondent, v. Continental Casualty Company, Appellant.
    Fourth Department,
    July 9, 1907.
    Accident insurance—breach, of warranty as to income—power of court to find facts.
    A statement by the holder of an accident"insurance policy , as to his.w.eekly income, on which statement the policy was issued, is a warranty, and there can be no recovery if the statement were false.
    Although the court may find facts when both parties move for the direction of ■ . a verdict, .the court may not find facts without evidence or contrary to the evidence.
    Damage held to be excessive.
    Appeal by the defendant, the' Continental Casualty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 6th ' day of September, 1906, upon the verdict of a jury, and.also from an order entered in said clerk’s office on the 5th day of September, 1906, denying the defendant’s motion fór a neiv trial made upon the minutes..
    
      Walter S. Jenkins, for the appellant.
    
      Eugene L. Falk and J. Craig Roberts, for the respondent.
   Williams, J.:

The..judgment and order should be reversed and a new trial, granted, with costs to. appellant to abide event.

The action was brought to recover upon a policy of accident insurance for' partial disability for a period of twenty-six weeks, by reason of an accident to the plaintiff. - .

The defenses interposed were:

First. Breach of warranty, plaintiff having stated that his weekly income was $300, which was untrue.
Second'. Failure to give notice of the accident-within ten days.
Third. Failure to furnish proofs of loss within thirty days.
Fourth. Excessive reco'very, tw.enty-six weeks at fifteen dollars per week.

The .court directed a verdict for plaintiff leaving only damages to be assessed by jury. "

As. to the first defense, the representations were warranties under the terms, of the policy. .'He‘stated his income was $300 per weék, and.upon-the evidence of the' plaintiff, hiinself given on .the trial. this was untrue. He' had ño such income. This'would seem to have been a perfect defense to the action. (Dwight v. Germania Life Ins. Co., 103 N. Y. 341.) There does not seem to be any adequate answer made to this defense, on the argument, except that" the -statement .was inadvertently made; It was made, howeverwas á warranty; the policy was. issued in - reliance upon it; and it being untrue, the policy is not enforcible.

It is said also that both parties having moved for the direction of a verdict, the court and not the jury had the right to find the facts. But this rule did not authorize the court to find a fact without evidence or directly contrary to the evidence. There was no dispute as to the facts constituting this defense, and .the law is well settled.

We tlfink there wás a failure to serve the ten-day notice and to furnish the' proofs of loss within thirty days, as required by the terms of.the policy.. Whether there was any. waiver may well;be doubted. Certainly" the. damages were excessive in any view of thé case. Plaintiff was not entitled to full twenty-six weeks’ indemnity at fifteen dollars per week, the highest -figure possible to fix. The rate per week should at least have been much less.

There are abundant reasons for granting a new trial in the case.

All concurred. ■

Judgment and order reversed and new trial ordered, with costé to the appellant' to abide: event, upon questions of law and fact.  