
    Margaret Robinson, Respondent, v. Supreme Commandery, United Order of the Golden Cross of the World, Appellant.
    
      Jnmraroce—question as to other insurance “in what company?"—answer stating only one company when the applicant was insured in two—a physician is incompetent to testify as to the cause of his patient's death — his certificate filed in the New York city health department is also incompetent.
    
    An application for membership in an assessment beneficiary order contained a number of questions and answers, among which was the following: “ 5. A. Is there now any insurance on your life ? Yes. B. If so, in what company and for what amount ? Temples of Liberty ; $1,000.”
    At the end of the questions and answers was a printed clause to the effect that the applicant agreed “that if there be, in any of the answers herein made, any untrue or evasive statements, misrepresentations or concealment of facts, * * * then all claims on the Benefit Fund * * * shall be forfeited and lost by me.”
    At the time the application was made the applicant was insured in the Prudential Insurance Company of New Jersey for the sum of $158.
    
      Meld, that if the insured intentionally concealed the fact that he was insured in the Prudential Insurance Company, such concealment would not constitute a breach of warranty, but would furnish a basis for avoiding the contract on the ground of fraud;
    That, as the language of the question was in the singular, the applicant might well understand that the beneficiary order simply desired him to specify one other organization or company in which he was insured, and that it could not be said, as matter of law, that his failure to disclose his insurance in the Prudential Company was a fraudulent concealment of facts.
    'Where, in an action upon a beneficiary certificate of life insurance, it is alleged as a defense that the insured made a false representation as to the cause of his father’s death, the physician who attended the insured’s father during his last illness is incompetent, under section 834 of the Code of Civil Procedure, to testify on behalf of the defendant, an assessment beneficiary order, as to the cause of his patient’s death.
    The death certificate made by such attending physician and filed, pursuant to law, with the health department of the city of New York, is not admissible to prove the cause of death, notwithstanding the provision of section 955 of the Code of Civil Procedure, which provides that official records which have remained on file in certain public offices, including the health department of the city of New York, for a period of twenty years “ shall be presumptive evidence of their contents, and shall be receivable in evidence as such upon any trial in any of the courts of this State in any controversy pending therein between any parties.”
    Appeal by the defendant, Supreme Commandery, United Order of the Golden Gross of the World, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 28th day of May, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      A If red B. Cruikshanfo, for the appellant.
    
      Charles Blandy, for the respondent.
   Laughlin, J.:

The action is upon a beneficiary certificate issued by the defendant to William S. Robinson for the benefit of his mother, the plaintiff.

The first ground upon which the appellant contends that it is not liable is that the complaint fails to state and the evidence fails to establish a cause of action against it. The precise contention of the appellant is that neither the complaint nor the evidence shows that the appellant is an assessment beneficiary order, that the decedent was a member thereof or that there is any fund for the payment of the claim. It is alleged in the complaint that the appellant is a corporation duly organized under the laws of the State of Tennessee; that the decedent was duly elected and admitted as a member of the “ Few Amsterdam Commandery, United Order of the Golden Cross, located in Few York, F. Y.that subsequently thereto the defendant executed and delivered to the decedent a benefit certificate which recited his election and admission to membership in said commandery; that he was “a contributor to the Junior Class Benefit Fund of this Order; ” that his application for membership and the statements certified by him to the medical examiner were on file in the office of the supreme keeper of records, and were made a part of the contract, and that it was issued upon condition that he comply “ in the future with the laws, rules and regulations now governing the said Commandery and fund, or that may hereafter be enacted by the Supreme Commandery to govern said Commandery and fund.” The certificate further recited that these conditions being complied with, the Supreme Commandery, United Order of the Golden Cross (being the defendant), hereby promises and binds itself to pay out of its Junior Class Benefit Fund to Margaret Robinson, mother, in accordance with and under the provisions of the law governing said benefit fund, and upon satisfactory evidence of the death of said member and upon the surrender of this certificate, the sum of Two thousand dollars, provided the said benefit fund of said class reaches the sum of Two thousand dollars at the assessment called in payment of this certificate, and if said assessment shall not reach the said sum of Two thousand dollars there shall be paid on said certificate all or a proportional part of the fund received from the then membership in one assessment; and further, provided that said member is in good standing in this order at the time of his death; that this certificate shall not have been surrendered by said member and another certificate issued at his request, in accordance with the laws of this order. And provided also that the suspension, disconnection or expulsion of said member shall work an immediate forfeiture of all claims of said member on the Benefit Fund of the Order, also the forfeiture of the claims of the beneficiaries named in this certificate.”

The complaint duly alleges the acceptance of the certificate in writing upon the conditions therein named, the death of the member while in good standing before the surrender of the certificate or change of beneficiary and “ that the Junior Class Benefit Fund reached the sum of Two thousand dollars at the assessment called in payment of said certificate, or would have reached said sum if said assessment had been called,” and that payment has been duly demanded and refused. The answer admits all of these allegations of the complaint except that the defendant denies that it has any knowledge or information sufficient to form a belief concerning the death of the member; but it admits the receipt of papers purporting to be proofs of his death. Upon the trial the plaintiff proved the death of the member and the presentation of the proofs of death.

The facts thus admitted and proved clearly made out a ¡prima, facie case of liability on the part of the defendant. In view of the allegations of the complaint which are admitted it appears either that the fund out of which the claim was payable was sufficient for the purpose or that it was insufficient through the omission of the defendant to levy an assessment. The appellant did not contest the claim on the ground of its inability to pay, but on account of alleged false representations on the part of the member in his application.

The next point to be considered relates to the defense based upon alleged misrepresentations of the decedent in his application for membership. It was recited in the application that the questions and answers contained therein were to form a part of the contract in case a benefit certificate was issued. The following questions and answers appear therein : “ 5. A. Is there now any insurance on your life ? Yes. B. If so, in what company and for what amount % Temples Of Liberty; $1,000.” It was shown that the decedent was at that time insured in the Prudential Insurance Company of Newark, N. J., for the sum of $158. At the end of the questions and answers and before the signature of the decedent there was a printed clause to the effect that the applicant agreed “ that if there be, in any of the answers herein made, any untrue or evasive statements, misrepresentations or concealment of facts, * * * then all claims on the Benefit Eund * * * shall be forfeited and lost by me.” It is not claimed that the decedent made any express misrepresentations, but it is contended that his answer did not disclose all of the truth, and was, therefore, evasive, and constituted a misrepresentation or concealment of fact as to his insurance in the Prudential Company. The rule is well settled that agreements of this character are strictly construed against the insurance company or order. It will be observed that the language of the question is in the singular, and it may well be that the applicant would understand thereby that the commandery merely desired him to specify one other organization or company in which he was insured. If he intentionally suppressed the truth the contract might be avoided on the ground of fraud, but it would not constitute a breach of warranty. (Dilleber v. Home Life Ins. Co., 69 N. Y. 256.)

At the close of the evidence both parties moved for a direction of a verdict, and neither requested to go to the jury upon any question. The court directed a verdict in favor of the plaintiff for $2,000 and interest. The parties thus by consent permitted the court to pass upon any question of fact there might be in the case. It cannot be said that there was a fraudulent concealment of facts as matter of law, and a finding that there was no fraudulent concealment would be supported by evidence.

The decedent died of consumption. In his application, in answer to a question, he stated that his father died of pneumonia, and the appellant, contending that the father also died of consumption, sets up a breach of warranty in this regard. Upon the trial the appellant offered in evidence a certificate of the death of the deceased member’s father made by the attending physician and duly filed with the health department of the city of New York, as required by law. This certificate recited that the cause of death was'consumption. The evidence was excluded and the defendant excepted. The physician who made the certificate was called as a witness, and the appellant offered to prove the cause of death by him. This was excluded, and it is not claimed that its exclusion was error. It is well settled that such evidence is incompetent under section 834 of the Code of Civil Procedure, and that the incompetency of the physician as a witness ordinarily renders the certificate of death also inadmissible. (Davis v. Supreme Lodge, Knights of Honor, 165 N. Y. 159.) The policy of the law, as disclosed by this general provision of the Code, to exclude evidence of this character, has influenced the courts in all instances where the question has arisen to decide that local laws declaring such certificates evidence should not be so construed as to make them competent in actions between private parties. (Davis v. Supreme Lodge, Knights of Honor, supra; Buffalo Loan, T. & S. D. Co. v. Knights Templar & M. M. A. Assn., 126 N. Y. 450.)

The appellant bases its claim to the admissibility of this evidence upon section 955 of the- Code of Civil Procedure, which provides as follows: “ All maps, surveys and official records, which shall have been on record or on file in the office of either the register of the city and county of New York, or the surrogate of said city, or any of the courts of record of said city, or the clerk of the city and county of New York, or any of the departments of said city as enumerated in section thirty-four of the New York City Consolidation Act (chapter four hundred and ten, laws of eighteen hundred and eighty-two) or in the office of the registers, surrogates, commissioners of public works, or kindred department or park department, for a period of twenty years or upwards prior to such trial, shall be presumptive evidence of their contents, and shall be receivable in evidence as such upon any trial in any of the courts of this State in any controversy pending therein, between any parties.”

The former provisions of section 955 of the Code of Civil Procedure were repealed by chapter 416 of the Laws of 1877. The present section was added by chapter 522 of the Laws of 1892. The health department is one of the departments enumerated in the statute referred to in this section of the Code, and there can be no doubt but that certificates of death are official records ” on file in that department. If that section is to be construed literally, it would seem, therefore, that the certificate should have been received in evidence. It is urged by the appellant that the reason for the exclusion of a death certificate made evidence by local laws no longer obtains. It is contended that the incorporation of these provisions in the Code shows a legislative intent that the “ maps, surveys and official records ” to which reference is made shall be received in evidence and be presumptive evidence of the facts recited therein in private litigations in any court. It is not apparent that any reason exists why death certificates filed in the city of New York should be received as evidence when similar certificates filed elsewhere throughout the State pursuant to similar laws and for the same purposes, are incompetent as evidence in litigations between private parties. Rules of evidence should be uniform and it has not been the policy of the lawmakers in the past to depart from this rule. No reason for a change of policy in this regard exists now. It would, therefore, seem that this section of the Code should be construed in harmony with section 834, and not as a repeal of the latter as to evidence in a particular county of the State. Full force and effect may be given to the legislative intent in enacting the present section 955 of the Code without ascribing to the Legislature an intention to render death certificates competent evidence of the facts recited in actions between individuals where common-law evidence of such facts has been heretofore required. The main purpose seems to have been to remove the difficulty of proving the accuracy of old maps, surveys and official records which have been on file and accepted as correct for more than twenty years in the transaction of official business. It must be presumed that the members of the Legislature at the time of the enactment of this new provision in this section were aware of the decisions of the court against the admissibility in evidence in actions between private parties of death certificates filed pursuant to local laws. If the Legislature had intended to change this rule of evidence, we think it-would have prescribed that such certificates would be admissible from official files in any county; and if on the theory that there were special reasons justifying it, which are not apparent to fis, it had been intended to make them admissible in the county of New York only, definite appropriate language to that end would have been employed. The certificate was, therefore, properly excluded.

It follows that the judgment and order should be affirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Judgment and order affirmed, with costs.  