
    Elizabeth Carmichael, Respondent, v. The John Hancock Mutual Life Ins. Co., Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Action on life insurance policy — When certificate of fieáth competent as admission — Contradicting statements in application — Failure to state grounds of objection.
    In an action on a life insurance policy the certificate of an attending physician, which has been made part of the proof of death by the plaintiff, is competent evidence' against her to show that the answers of the deceased, in the application for insurance, were false. Being delivered as a proof of death it is an admission against interest and the privilege which excludes the testimony of a physician is waived.
    In such action evidence that the assured gave truthful answers to the examiner but that he -wrote them falsely in the application, is competent.
    If proof is offered inconsistent -with the theory of the action an objection thereto must be taken on that ground, such error cannot be urged for the first time on appeal. .
    
      Appeal by the defendant from, a judgment of the City Court of the city of Yew York, rendered in favor of the plaintiff, upon a verdict, and from an order denying a motion for a new trial.
    Langbein & Langbein (Leonard J. Langbein, of counsel), for appellant.
    Yathaniel Levy, for respondent.
   Bischoff, J.

The action being upon a policy of life insurance, with a defense of breach of warranty as to the truthfulness of the insured’s answers in the application for the insurance, the defendant offered in evidence the certificate of the attending physician, which had been delivered by the plaintiff to the defendant as a part of the proofs of death under the policy. The paper, which showed a cause of death inconsistent with the truth of the answers warranted by the application, was excluded and the exception to the ruling presents reversible error.

The certificate of the attending physician, when made a part of the proofs of death, is competent evidence on the trial as an admission against interest (Donnelly v. Metropolitan Life Ins. Co., 43 Misc. Rep. 87; Hanna v. Connecticut Mut. L. Ins. Co., 150 N. Y. 526), and the cases which hold that-such a certificate, when offered, as such, without the characteristics of an admission by the plaintiff, may be excluded as privileged (Robinson v. Supreme Commandery, 77 App. Div. 219; Davis v. Supreme Lodge, 165 N. Y. 159) do not apply.

Where the certificate has been delivered among the proofs of death, its character as proof is derived not from what the physician declared, but from what the plaintiff has admitted to be the fact, i. e. the cause of death, and the privilege which she might assert to exclude the evidence of the physician, does not extend to evidence of what she has herself admitted.

The appellant also contends that error was committed in the reception of evidence to show that the assured gave truthful answers to the examiner and that the latter wrote them falsely in the application. This evidence was competent (Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13; Ames v. Manhattan Life Ins. Co., 40 App. Div. 472), and the contention that the plaintiff should have alleged the facts, thus at variance with the application which, as it stood, was made a part of the complaint, is raised for the first time on appeal. If the proof offered was inconsistent with the theory of action, as disclosed by the complaint, the objection should have been directed to that point, but it was not, and the court ruled properly upon the objection, as it was presented.

For the error above noted, however, there must be a new trial.

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

Freedman, P. J., and Gildersleeve, J., concur.

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