
    Theresa Rossenbach, Respondent, v. The Supreme Court of the Independent Order of Foresters, Appellant.
    Fourth Department,
    December 28, 1906.
    Insurance — false warranty as to temperate habits — verdict for beneficiary nót sustained by evidence.
    When, in an application for insurance, the insured denied that he ever drank wines, spirits or beer, and stated that he never had been intoxicated, while as a matter of fact it is shown that he was twice sentenced for public intoxication and served out one sentence of thirty days, and many witnesses testify to his frequent intoxication, a verdict for the beneficiary is against the weight of evidence, even though she presents testimony as to the temperance of the insured.
    Appeal by the defendant, The Supreme Court of the Independent Order of Foresters, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 1st day of June, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      O. P. Stockwell, for the appellant.
    
      Charles Van Voorhis and George V. Fleckenstein, for the respondent.
   Spring, J.:

Oil the 18th of December, 1900, the defendant issued its benefit certificate, whereby it agreed to pay to the plaintiff the sum of $2,000 upon the death of William. Marzhauser while a member of its order in good standing. •" Marzhauser died October 27, 1901, while a member of the order, and the action is to collect the sum due by the terms of the agreement. ■ The case was in this court upon a previous appeal after a verdict in favor of the plaintiff, and the judgment and order denying a new trial were unanimously affirmed. (98 App. Div. 634.) A new trial was ordered in the Court of Appeals for errors in the exclusion of evidence. (184 N. Y. 92.)

Afte'r a more careful consideration of the case we are satisfied that we erred in nbt ordering a new trial upon the former appeal on the ground that the verdict was contrary to the evidence. We propose now, in so far as we are able, to right the wrong then committed.

The medical examiner propounded to Marzhauser upon his application for insurance a number of questions to test his record for sobriety. The questions and answers were as follows: “Do you drink wine? Fo. Do you drink spirits? Fo. , Do you drink malt liquors ? Fo. * * * Have you been intoxicated within the past 5 years ? Fo. * * * When was the last occasion ? Fever. What has been yoiir habit in this respect during life? Temperate,” The application containing these answers was signed by Marzhauser, and the defendant claims that they were false and fraudulently made, by him. The medical examiner testified that these questions were put to Marzhauser; 'that he answered them as they appear in the application and were read over to him.

There.have been three trials of.this action and two verdicts. Upon the former trials William Eossenbach,, the husband of the plaintiff, was a witness in her behalf. He died prior to- the last trial and his testimony was read from the stenographer’s minutes' of the second trial. He testified that he was present at the medical examination of Marzhauser and that the applicant was not asked the questiofts wffiich have been quoted, or inquired Of concerning his habits, nor did he make the answers which appear in the application, nor were they read over to him.

The medical examiner was the agent of the defendant in taking down these answers, and, if he incorrectly recorded them, the plaintiff may show that fact to prevent the forfeiture of the benefit certificate. (Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13).

The dispute over this proposition was a question of fact.

There are one or two pregnant facts relative to Marzhauser’s indulgence in liquor which may be important to mention. He applied for insurance with' the defendant October 10,1900, and was initiated ¡November twenty-second following, and the certificate bears date ¡December eighteenth. On October 23, 1899, less than a year before he applied for insurance in the defendant, he was convicted- in the Court of Special Sessions in Rochester of intoxication in a public place, sentenced to thirty days in the Monroe County Penitentiary in default of paying' the fine imposed, and served out the sentence. In the same court he was convicted of a like offense December 21, 1897. These two convictions are cogent in contra‘diction of the answers given by Marzhauser and which have already been quoted.

Many witnesses testified as to his very frequent intoxication for several years immediately preceding the issuance of the benefit certificate sued upon. There are other witnesses, relatives or acquaintances, who testified to his almost uniform temperance. It is unnecessary to analyze or comment upon these contradictions. A perusal of the record leaves the impression irresistibly that he -was addicted to the drink habit and was very often intoxicated. He was committed to the State Hospital for the Insane at Rochester about the time the certificate was issued and continued there until his death in October following.

There was a general verdict. Two questions were properly submitted to the jury. One, whether the questions bearing upon his habits were put to the applicant and answered by him; and the other whether, if so, they were false and fraudulently answered. For aught that we may know the jury may have found that the ■answers were correctly transcribed, but were not false in fact. In that view of the case we think the jury disregarded the weight of the evidence and a new trial should be granted. ,

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event upon questions of fact.  