
    Henrietta Berry, Respondent, v. The Metropolitan Life Insurance Co., Appellant.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Estoppel — A party who has asserted and relied upon a contract, in an action, cannot attack therein its basis and consideration.
    Where a wife brings an action upon a policy of life insurance issued in her favor upon the life of her husband and providing among other things that the statements in his application shall be warranties and a part of the contract, and on the trial the wife offers the policy and claim of loss in evidence, and the insurer defends upon the ground of the falsity of a statement contained in the application of the insured that he had never been under treatment in any dispensary or hospital except in an instance stated, and the plaintiff’s claim of loss shows that she stated therein that her husband made the application for the insurance, it is erroneous for the court to permit her, against objection by the insurer, subsequently to give evidence tending to prove that her husband never signed the application.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, entered on the verdict of a jury, in favor of the plaintiff.
    Ritch, Woodford, Bovee & Butcher, for appellant.
    Willoughby B. Dobbs, for respondent.
   Gbeenbaum, J.

The defense to this action on a policy of life insurance was a breach of warranty by the insured.

The application, a copy of which appeared on the back of the policy, which the plaintiff put in evidence, contained a statement that the insured had “ never been under treatment in any dispensary, hospital or asylum nor been an inmate of any almshouse or other institution except two years ago, Rheumatism, Mt. Sinai Dispensary.” The plaintiff herself admitted on cross-examination that in 1901 her husband, the insured, had been at the Presbyterian hospital for three days, for treatment of his arm, and the defendant’s proofs tended to establish the same fact. To avoid the effect of this the plaintiff, after both sides had rested, moved to strike out the physician’s testimony. This motion having been denied, she was permitted, over the defendant’s objection, to give evidence tending to prove that the insured never signed the application for the policy. Both sides practically acquiesced in the theory of the case, as presented to the jury, that if the insured did make the application the proofs showed a breach of warranty. In allowing such proof the trial court clearly committed error. The plaintiff was concluded, by her own evidence, from establishing this fact. She had herself offered in evidence, and her case rested upon, the policy and claim of loss. The former re- " cited that it was issued “ In consideration of the statements in the printed and written application for this policy, a copy of which is hereto annexed, all of which are hereby made warranties and part of this contract,” and the copy of the application is marked “ (signed)' Michael J. Barry.” In the latter, the plaintiff herself states, in answer to question 20, “ who made application for this insurance? State name and relationship,” “Deceased himself.” Having asserted her contract she could not attack the basis and consideration for it, which she herself proved to support it.

Beyond what has been said, she wholly failed in establishing the fact that her husband did not sign the application. Her testimony merely proved that on the occasion of the doctor’s visit at their home her husband signed no paper. Non constat, that, at some other time and at some other place, he did sign it. The .original application was not brought into court, with proof either that there was no signature annexed thereto, or that the signature was not that of her husband.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Leventritt, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  