
    Maria Butler, Appellant, v. The Supreme Council Catholic Benevolent Legion, Respondent.
    
      Trial —power of ike court to dismiss a complaint after the jury have disagreed.
    
    A judge presiding at a jury trial has power to dismiss the complaint after he has: submitted the case to the jury and the latter have reported that they are unable, to agree.
    Appeal by the plaintiff, Maria Butler, from a judgment of the> Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of March, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at. the Kings County Trial Term, and also from an order entered in said clerk’s office on the 16th day of. March,. 1899; denying' the plaintiffs motion for a new trial.
    
      August W. Glatzmayer, for the appellant.
    
      John C. McGuire, for the respondent.,
   Woodward, J.:

On the 7th day of June, 1897, Michael C. Butler made application to the Catholic Benevolent Legion, the defendant, for membership in the second grade, through La Fayette Council. In this application he warranted, as true, “ every statement made by me upon this application, and every answer and statement I shall make to the medical examiner.” The constitution and by-laws of the defendant, it is conceded, fix fifty-five years, as the limit beyond which it will not issue its policy of insurance. Mr. Butler, in making his application, stated that I was born at Parish Cam, county of Roscommon, . State of Ireland, on the 16th day of August, 1842; am between fifty-four and fifty-five years of age.” Hie was admitted to the order on the 14th day of August, 1897, two days before reach? ing the age limit according to his statement, and he died soon afterward, leaving a widow as his beneficiary. She made proofs of death, and demanded payment, which was refused on the ground that the deceased had made, false statements, in his application, and,.that he was, in fact, above the age limit át the time of the application and admission to the older. The pleadings. concede all of the facts' necessary to the plaintiffs cause of action, but set up the affirmative defense that the deceased was guilty of fraud in gaining admission to the order, in that he misrepresented his age. The learned trial court submitted the question to the jury, which, after being out some time, reported that it was unable to agree. The court then announced that it would dismiss the complaint, to which plaintiif’s attorney duly excepted, and an appeal comes to this court.

While the proceeding, on the part of the learned trial court was somewhat extraordinary, there does not appear to be any good reason why the court could not grant the motion of the defendant for the direction of a verdict or a dismissal' of the complaint at any time before the ¡jury had actéd, if the evidence was not sufficient jto justify a verdict for the plaintiff. It was conceded on the trial that the statements made in the application of the deceased constituted a warranty, thus taking the case out of the rule laid "down in Egan v. Supreme Council (32 App. Div. 245), where it was held that the warranty was subject to the condition that the statements were true to the best of the applicant’s knowledge and belief, and that it was necessary for the defendant to show that the statements were not only false but that they were false to the knowledge and belief of the applicant. The application in the case at bar is materially different from the one involved in the Egan case, and. there can be no doubt, independent of the admission of counsel, that the applicant undertook, in the case at bar, to warrant his age at less than fifty-five years.

While the statements of the applicant are entitled to the presumption that they are true, the evidence of the plaintiff that she was eighteen years old at the time of her marriage to Mr. Butler in 1860, making her fifty-five years of age at the time the certificate of membership was granted to her husband, and her statement'that “ I suppose he was ten years older than I,” are sufficient to overcome this presumption, and to establish the fact that the insured was above the age fixed by the constitution of the defendant for admission to the order. This uncontradicted evidence of the plaintiff, supported by the circumstances brought out by the testimony by commissions from the former home of the insured in Ireland, is such as to establish the fact that the membership in the order of the defendant was gained by a fraudulent misrepresentation of a material fact; that the applicant, was, in fact, more than sixty years of age at the time of entering-the order. This being true, he never had any real membership, and his beneficiary cannot recover on the policy issued.

The judgment appealed from should be affirmed, with costs. .

All concurred.

Judgment and order affirmed, with costs.  