
    Ellen Sullivan, Resp’t, v. The Metropolitan Life Ins. Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 2, 1891.)
    
    1. Insurance (life)—Breach of warranty.
    An intent to defraud is not a constituent element of the defense of a breach of warranty of the representations of the insured, but such defense is made out by showing that he made a material representation upon which defendant accepted the risk; that such representation was expressly warranted to be true, and that in fact it was not true.
    2. Same.
    The insured represented that he had never been sick and had never been attended by a physician. It was proved on cross-examination of his mother, the beneficiary, that he was ailing and had been attended by a physician within a month before the policy was issued. Held, a breach of the warranty which rendered the policy void.
    Appeal from judgment rendered in the first district court, Mitchell, J., in favor of the plaintiff in an action to recover upon an insurance policy, the defense being breach of warranty of the truth of the representations of the insured.
    
      Morris YY. Hart, for resp’t; William H. Arnoux, for app’lt.
   Per Curiam.

The judgment appealed from must be reversed. The gist of the defense is not, as counsel for respondent supposes, fraud on the part of the insured in the making of the representations upon the faith of which the policy was issued to him, but breach of an express warranty of the truth of such representations. The intent to defraud is not therefore a constituent element of the defense. It is sufficient for the defendant to show that the insured made a material representation relying upon which the defendant accepted the risk of insurance, that the insured expressly warranted such representation, to be true, and that in fact it was not true. See Foot v. The Ætna Life Ins. Co., 61 N. Y., 571.

In the case at bar the insured represented that he had never been sick and had never been attended by a physician, yet the uncontroverted testimony of the plaintiff, the mother of the insured and the beneficiary under the policy, brought out on cross-examination, shows that the insured was ailing and had been attended by Dr. Marrill within less than a month before the issuance of the policy. This was a misrepresentation of material facts, and a breach of the warranty of the truth of the representations upon which the policy was issued and pursuant to the terms thereof rendered the policy void. Nor can it help the plaintiff" that the agent of the defendant who solicited the insurance and aided in the preparation of ’ the insured’s application knew the representations therein contained to be false and untrue. See Foot v. The Ætna Life Ins. Co., supra.

Judgment should be reversed, with costs. -

Allen, Bischoff and Pryor, JJ., concur.  