
    Mary C. Bernard, Appellant, v. The United Life Insurance Association, Respondent.
    (City Court of New York — General Term,
    February, 1895.)
    A false statement in an application for life insurance, that “no application .has been made to any other company for insurance,” vitiates the policy. -
    Where the policy provides that no waiver shall be valid unless in writing signed by the president or vice-president and secretary or.assistant secretary, neither the agent who solicited the insurance, nor' a superintendent of "agencies who is merely an agent working for commissions, has power to waive any of the terms of the policy.
    
      Knowledge by such persons prior to the issuing of the policy that application to another company had been made will not estop the insurer from insisting on a forfeiture by reason of the falsity of such statement.
    Appeal from ■ judgment entered upon a dismissal of the complaint.
    
      I/ymam W. Redirngton, for appellant.
    
      Harry Wilber, for respondent.
   Fitzsimons, J.

The complaint was rightfully dismissed. The statement that “ no application had been made to any other company for insurance ” was admittedly false, and that being a material statement and untrue, under the terms of the defendant’s policy of insurance,vitiated it.

It is true that the defendant could waive the forfeiture, but there is nothing in the appeal record which would justify us in saying that there was such a waiver. The provision of the policy concerning waiver of any of its terms reads as follows : “No waiver shall be valid unless the same shall be in writing signed by the president or vice-president and secretary or assistant secretary of the association.” Certainly, the waiver claimed by the plaintiff was not in accordance with the provision just mentioned, but she claims that one Donovan, a solicitor for the defendant, knew that another application had been made by the assured to the Mutual Reserve Fund and rejected.

That also one Lord, who was in defendant’s employ as superintendent of agencies, had such knowledge. What his duties and powers were does not appear, but he appears not to have the power of waiving any of the terms of defendant’s policy. He had no official position in defendant’s company, was merely an agent working for commissions, and could not make a contract for defendant or waive any of the terms of a contract made by it.

Donovan’s position in defendant’s company was much lower and less powerful even than the one held by Lord, and he, so far as the answer made in the assured’s .application is concerned, was the agent of the assured and not defendant’s agent, and he certainly had no right to waive- any of the terms of defendant’s policies.

Besides, the alleged waiver, according to plaintiff’s testimony, was made "before the policy was issued. IIow the terms of a proposed contract can he waived before it is made is something we cannot understand. Perhaps if persons in defendant’s employ who had the power to waive defendant’s contracts or some of the terms thereof had the knowledge that plaintiff claims Donovan and Lord possessed, viz., The rejection of the insured by the Mutual Reserve Fund,” then defendant might be estopped from insisting upon the forfeiture, but that is not the case here, for, as pointed out by us, neither Donovan nor Lord had the power or authority sufficient to create an estoppel or waiver against the defendant’s interests.

Although, as claimed by appellant’s counsel, this may be a hard case against his client as a matter of morals, yet we must, for the reasons herein given, affirm the judgment, with costs.

Ehrlich, Ch. J., concurs; Newburger, J., concurs in the result.

Judgment affirmed,, with costs.  