
    Eliza Mahaney, Resp't, v. The Mutual Reserve Fund Life Association, App'lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 13, 1893.)
    
    Insurance (life)—Warranty—Age of insured.
    On the trial of an action to recover on a life insurance policy, it appeared that the insured, in her application for insurance, had stated that she was horn in Ireland in 1834, and that her maiden name was D. Defendant introduced in evidence affidavits made by the insured upon applications for a pension, wherein she stated ages inconsistent with the date of birth given the defendant. Also a transcript from the register of an Irish parish showing that the insured was married in 1841, and transcripts of entries of births of her children between 1844 and 1848. To rebut such evidence, plaintiff introduced a large number of witnesses who had known the insured, and who placed her age at death, in 1890, at fifty-six, one witness testifying that he had known her in 1850, she being known by the name of G., and unmarried. It appeared that one of insured’s daughters was married in 1863, and was then seventeen or eighteen years old. The court charged that if tlie age of the insured was more than stated in her application, plaintiff could not recover. Held, that a verdict for plaintiff was against the weight of evidence.
    Appeal from a judgment entered in Oswego county, on the 5th February, 1892, upon a verdict at the Oswego circuit, January, 1892, in favor of the plaintiff, for $1,090; also from an order denying a motion on the minutes for a new trial.
    The action is upon a certificate of membership, issued by the defendant to Catharine Mahaney, the mother of the plaintiff, on the 9th June, 1885, in and by which it was declared that within ninety days after receipt of satisfactory evidence of the death of the member, there should be payable to the plaintiff, if she was then alive, otherwise to the legal representatives of the member, the sum of $1,000 from the death fund of the association, or from any moneys that should be realized to that fund from the next assessment to be made as therein stated. Catharine Mahaney died on the 8th April, 1890, and the proofs of death were furnished to the defendant on the 23d April, 1890.
    The defenses relied on are, first, that there has been a breach of a warranty in the application for membership that the applicant was born November 10, 1834; and, second, that there was fraud in making the statement as to the age of the applicant.
    
      W. H Kenyon, for app’lt; Whitney & Bulger and J. B. Higgins, for resp’t.
   Merwin, J.

In the application of Catherine Mahaney for membership in the defendant, it was stated that she was born on the 10th day of November, 1834, in the county of Waterford, Ireland, and that her age at next birth day, being November 10, a 1885, was fifty-one years. The court charged the jury that if the age of the applicant was more than as stated, the plaintiff could not recover. The jury, therefore, in finding for plaintiff, in effect found that the agé was correctly stated. The main point presented by the appellant upon this appeal is that such finding is against the weight of evidence.

The applicant and her husband, Cain O. Mahaney, came to this country from England prior to 1860. It was shown, by the testi-. mony of Ellen Delong, a sister of plaintiff, and not denied, that the maiden name of her mother was Catharine. Dudley, that she had altogether seven children; three of whom died before she came to this country, and' that the other four who came over with their parents and are still living were the witness, the plaintiff, whom she called Lizzie, Cornelius and Mary. In 1862 Cain O. Mahaney enlisted at Oswego as a soldier in the service of the United States, and it appears that he died in May, 1878. The defendant puts in evidence an affidavit made by Mrs. Mahaney on the 14th August, 1878, for the purpose of obtaining a pension. This was made at Oswego before a special agent of the pension office and was produced by him from the records of the pension bureau, and he testifies that it was written by him at the dictation of Mrs. Mahaney and that he then read it over to her and she signed and swore to' it. There is nothing in the case to discredit his testimony. In this affidavit Mrs. Mahaney states among other things that “ her age is fifty-five or sixty years,” that she was married to Cain “in Chelsea, county of Middlesex,- England, about in 1842,” and came with her husband to this country in 1857; that her husband at his death was about sixty-six years old.

The defendant also puts in evidence another application made by Mrs. Mahaney for a pension on 26th September, 1889.' This was filed in the pension office October 3, 1889, and was signed at Oswego in the presence of two witnesses and certified to by the county cleric of Oswego county. The deputy clerk who certified to the paper and one of the subscribing witnesses were called as witnesses at the trial, and both testified that the paper was at the time read over to Mrs. Mahaney. The evidence of these witnesses was not discredited. In this application it was recited that Mrs. Mahaney was sixty-six years old, and it stated among other things that Cain 0. Mahaney, her husband, enlisted at Oswego on the 29th August, 1862, and that she, under the name of Catharine Dudley, was married to him “on the ** day of July, 1844, by Bev. Bobinson, at London. England.”

The defendant also puts in evidence a transcript from the register of marriages of the parish of St. Nicholas, Deptford, of the county of Kent, England, showing that on the 2Sd May, 1841, Cain Mahaney and Kittie Dudley, both of full age, were married in the parish church by A. E. Kitchley, vicar; also a transcript from the register of births for the sub-district of South Chelsea, in the county of Middlesex, England, showing the birth, on the 10th March, 1844, of Ellen, daughter of Cain Mahaney and Kitty Mahaney, formerly Dudley; also another transcript from the register of births of the same district, showing the birth on the 24th September, 1849, of Elizabeth, daughter of Gain Mahaney and Catharine Mahaney, formerly Dudley; also another transcript from the register of births for the sub-district of Chelsea, northeast, in the county of Middlesex, showing the birth, on the 21st March, 1852, of Cornelius, son of Cain Mahaney and Catharine Mahaney, formerly Dudley. Transcripts of similar entries of births in the general register office, Somerset house, London, were given in evidence, as well as the law providing for the registering of marriages and births, and in pursuance of which the registers were kept. Photographs were also given of the original entries in the registers, and these were verified by the testimony of the person under whose supervision they were taken. Beside these records, the defendant introduced a large number of witnesses who had been acquainted with Mrs. Mahaney for different periods of time since her arrival in this country, and who gave their opinions as to her age, based upon her appearance, as they had observed it, and some of them had heard her speak in general terms of her age. The testimony of these witnesses was to the effect that she was from ten to twenty years older than she had stated in her application in question.

To rebut this evidence the plaintiff introduced a large number of witnesses who had been acquainted with Mrs. Mahaney, to more or less extent, and who, in most, instances, placed her age at the time of her death at about fifty-six years. One of these witnesses, Mr. Cunningham, whose evidence is particularly relied on by the plaintiff, testified that he had seen Mrs. Mahaney and Cain 0. Mahaney in Bristol, England, before 1850, and that they were not married then, that he khew of. He does not profess to give the age of either at that time, except that he says he thinks that Mrs. Mahaney was older than he was. Of himself, he says that he was born at Bristol in 1835- or 1837, and made Bristol his home until about 1850, and was seventeen or nineteen when he left there. Of Cain O. ijtahaney, he says he saw him in the city of Bristol; “ I didn’t know him long, perhaps two or three months; I was quite young.”

Of Mrs. Mahaney, he says that he met her after he knew Cain, and that she then went by the name of Kitty Gaul. He does not state where she lived, except that he understood she lived with some relations by the name of Gaul in an adjoining parish. He admits testifying upon another occasion that he did not see her at any other place than on the street. He does not say where it was that he first saw Gain or where Cain, in fact, lived. This witness is very uncertain in his dates, and while his evidence standing alone may throw some doubt as to whether these parties lived in London at the date of the marriage record, it fortifies but very little the proposition that Mrs. Mahaney was born as late as November, 1834.

There appears to be no reason why Mrs. Mahaney, at the time of making the pension applications in 1878 and in 1879, should state her age greater than she thought it was in fact, or place the date of her marriage earlier than it was according to her then understanding. She evidently had no records to guide her. There is in the case no record evidence of her birth. She was a woman of some education, as she wrote her name to the application of 1878. Both of those applications are utterly inconsistent with her age being only fifty-one in November, 1885; and the fact that those applications, although eleven years apart and taken under different circumstances, are substantially harmonious in the matter of age, adds materially to the weight that should be given to them in the case.

“ The four English records are in the same direction, and, assuming the identity to be established, are entitled to great weight. Ordinarily, identity of name is prima facie evidence of, identity of person, Jackson v. Boneham, 15 Johns., 226; Jackson v. King, 5 Cow., 237, and a middle letter will be deemed no part of the name. Milk v. Christie, 1 Hill, 102; Van Voorhis v. Budd, 39 Barb., 479; Arnold v. Nat., etc., Bank, 3 T. & C., 769. Each case, however, will depend largely upon its own circumstances. In regard to the parties to the marriage record, there may be some doubt as to the identity not only by reason of the evidence of Cunningham, but by reason of different dates being given of the marriage in the pension applications, one stating it as about in 1842 and the other as in July, 1844, and before a different clergyman. But as to the birth records, a careful consideration of the evidence leaves hardly room for doubt as to the identity. If that be so, and the daughter Ellen was born on March 10, 1844, there is scarcely any ground for believing that her mother was born as late as November 10, 1834.

There is another consideration that has some bearing. There is evidence that the daughter Ellen was married at Oswego in 1862, and that she was then seventeen or eighteen years old. These facts are not disputed, and the plaintiff was apparently in a position to be able to ascertain whether they were true or not. If Ellen was then eighteen, that would place her birth in 1844, as stated in the birth record. It also appears that in a written application by plaintiff for membership in the Flour City Life Association, dated July 29, 1889, and signed by the plaintiff, the age of her mother is stated to be sixty-five. The person who took this application undertakes to say that the age of the mother was not filled in by plaintiff or from her statements, but his evidence on the subject is not very satisfactory. The plaintiff, herself, does not speak on the subject. She is not sworn as to the age of her mother, nor are either of her two sisters, though they appear to be accessible. Ho reason appears why they are not called to speak on the subject. The witnesses upon either side who express their opinion as to the age of the deceased do not appear to be her relatives.

In view of the evidence furnished by the pension applications, by the birth records, and as to the marriage and age then of the daughter Ellen and the declaration of the plaintiff, and in view of the necessarily uncertain and inconclusive character of the opinion evidence on the subject of age, we are strongly impressed with the idea that upon the case as it stands before us the verdict is against the weight of the evidence.

It is suggested by the respondent that the statements of the assured were not competent evidence against the plaintiff, and that, therefore, they should not be considered on this appeal. On the contrary we must assume that they were competent, and if the respondent took any exception to their admission, it is not now before us. Bridgford v. Crocker, 3 T. & C., 273. As to such evidence, see Steinhausen v. M. A. Assn., 59 Hun, 336; 36 St. Rep., 70.

It follows that a new trial should be granted upon the ground that the verdict is against the weight of evidence. This will be upon the usual terms in such cases.

Hardin, P. J.

Although as a rule we do not disturb a verdict founded upon conflicting evidence, Clemans v. The Supreme Assembly, Royal Society of Good Fellows, 50 St. Rep., 519, still in a case where so much doubt exists as to the correctness of the finding, as is clearly shown by the foregoing opinion, I am disposed to favor another trial when the parties may, if possible, present more satisfactory evidence upon the vital questions. I, therefore, vote for a new trial.

Judgment and order reversed, and a new trial ordered upon the payment by the appellant of the costs of the trial and without costs of this appeal to either party. In case such costs are not paid within twenty days, then judgment and order affirmed, with costs.  