
    Mary Maher and Norah E. Bannon, Respondents, v. Empire Life Insurance Company, Appellant.
    Second Department,
    January 5, 1906.
    Evidence — when admissions founded on hearsay not admissible as against interest — life insurance—when proof of death not admissible to show date of birth — defense raised first time on appeal — census returns inadmissible in evidence.
    An admission which, on' its face, purports to be mere hearsay and not á matter of personal knowledge, is inadmissible as a declaration against interest.
    When, in an action by beneficiaries against a life insurance company, the defendant contends that the insured misrepresented her age in her application and the only evidence thereof is the proof of death verified by the beneficiaries giving the date of the birth of the insured a year prior to that shown in the application and containing the following question and answer: “ From what source of knowledge or information do you fix the date and place of birth 1 We heard our mother mention year 1840,” such statement is inadmissible-as an admission against interest, . .
    
      Such insurance company cannot contend for the first time on appeal that the insured did not rightfully become a member, when the defense is not alleged and the defendant has received premiums on the policy since its inception. Census returns are not admissible as proof of date of birth, both on account of their gross inaccuracy and because they are hearsay.
    Woodward and Miller, JJ., dissented.
    Appeal by the defendant, the Empire Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 7th ‘ day of December, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 16th day of December, 1904, as resettled by an order entered on the 30th day of December, 1904’, denying the defend ant’s motion for a new trial made upon the minutes.
    
      Charles Blandy, for the appellant.
    
      William B. Hurd, Jr., for the respondents.
   Hooker, J.:

In this action by the beneficiaries upon a life insurance policy the defendant plead and sought to show that the insured misrepresented her age at the-time she applied for the insurance. Her application contained a representation that she was born on the 10th day of December, 1841. The only evidence introduced by the defendant to sustain its contention was the proofs of death subscribed and. sworn to by the two beneficiaries, the plaintiffs. In these proofs were the following questions and answers: Date of birth of deceased? Db not know mqnth/or day, year 1840. From what source of knowledge nr information do you fix the date and place of birth ? We heard our mother mention year 1840.” The court below refused to allow the defendant to go to the jury on the question of whether the decedent was born on the 10th of December, 1841, and directed a verdict in favor of the plaintiffs. The defendant appeals from the judgment and frpm the order denying its motion . for a new trial.

We are of opinion that the proofs of death afforded in favor of the defendant no proof of the fact that the insured was not bom on the 10th day of December, 1841. The defendant urges that inasmuch as the plaintiffs subscribed, the proofs of death', the statements therein contained are admissible in evidence against them so far as material, on the theory that they are admissions against interest, and hence that there is some evidence that the insured was not bora on the day she represented, and that a question of fact' is presented which should have been submitted to the jury. It has been held that admissions against interest, even though made without being _ based upon personal knowledge by the-person admitting, are receivable. It is said in Kitchen v. Robbins (29 Ga. 713) that admissions would not be made except on evidence which satisfies the party who is making them against his own interest that they are true, and that as evidence to the jury they are true. This seems to be the true ground upon which admissions against interest are usually received. A distinction, however, has arisen in the law of this State, based upon whether the language of the' admission was such as tó indicate that the party assumed at the time the admission was made to speak upon positive knowledge, or, on the other hand, whether the admission on its face showed that it was a mere repetition of what another had said. This distinction is pointed out in the opinion of Presiding Justice Goodbioh in Reed v. McCord (18 App. Div. 381, 386), where it is said : “A clear distinction exists between an ad mission which by. its wording is stated to.be mere hearsay evidence and matter which by the wording of the sentence does not appear to be hearsay. (1 Greenl. on Ev. § 202.) * * * An examination of the grammatical construction of the admission in question shows that it was complete in itself and was not stated by the witness to be hearsay evidence or a statement made to him by any person or a repetition of any such remark, but was an absolutely unqualified admission of-the facts therein stated. The source or reason of the statement by the witness did not appear, and this rendered the admission of the evidence proper within the reasoning of the authorities already cited.” When the case of Reed v. McCord (supra) reached the Court of Appeals the judgment was affirmed (160 N. Y. 330), and much the same view of the law was taken as to this phase of the case. Judge Mastín said: “The defendant being a party to this action, his admissions against his own interest ' were evidence in favor of his adversary, if of a fact material to the issue. If he had merely admitted that he heard that the accident occurred in the manner stated, it would have been inadmissible, as then it would only have amounted to-am admission that he had heard the statement which he repeated and not to á-n, ad mission- of the facts included in it. That would have been in 'no sense an admisX sion of any fact pertinent to the -issue, but a mere admission of what" he had heard without adoption or indorsement.- -.Such evidence . is clearly inadmissible. (Stephens v. Vroman, 16 N. Y. 381.) But the ádmiSsions-proved in this case were not of that character. -They were plain admissions of facts and circumstances which, attended the -intestate’s injury. In a civil- action the - .admissions by a ■ party" of .any fact material to the issue are always- competent evidence against him wherever, whenever or to whomsoever made. (Cook v. Barr, 44 N. Y. 156 ; Whiton v. Snyder, 88 N. Y. 306 ; Eisenlord v. Clum, 126 N. Y. 559 ; Hutchins v. Van Vechten, 140 N. Y. 118 ; Owen v. Cawley, 36 N. Y. 600,)

The admission in this case falls in the class which by its wording is stated to-be mere-hearsay evidence-as distinguished from such .as is stated upon the positive, knowledge of the party making the admission, even though as matter of fact he may not have been pos- ■ " sessed of actual knowledge in the premises." The plaintiffs were asked to state in their proofs of death the date of the decedent’s birth and-from what sources of knowledge or information they fixed ■the date; and the-answer was that they gave-1840 as the year of her birth, not knowing the month or day, because they heard their mother mention the year 1840,. The. admission must, of course,, be '•considered in its entirety,- and it is clearly nothing further than a statement that they derived information from .their mother' that, she had been born in a given year. The admission is not made unequivocally, is not asserted as -though upon.the positive knowledge of the , admitting parties, and it seems clear that the evidence should not have been received as an admission against interest. . The admission' being made purely upon the information had from the mother, deriving its sole -support therefrom, cannot be any stronger against the plaintiffs than -the unsworn statement Itself from which they, infer the fact, especially where there is nothing, as. here, indicating that the plaintiffs adopted -the fact as the truth.- -One of the plain- ' tiffs,, called .by the defendant, -testified on "the trial that she . had -no knowledge of her mother’s age except as she had learned it from statements made by the mother. r. . . ' ,

It is too'late upon this appeal for the defendant to raise the question that the decedent did not.rightfully become a member of the defendant. The insurance, company had received premiums .regularly upon the policy since its inception, and the. defense that the membership was -obtained irregularly was not plead. The judgment must be secundum, allegata et probata. (Brightson v. Claflin Co., 180 N. Y. 76.)

The court did not err in excluding the census returns. ' Their probative force was nil. On their face they demonstrated that they were teeming with untruths. They were unreliable, .irreconcilable and at variance'one with another. They show, among other things, that Patrick Vahey had lived twelve years in ten, for his age is given as eight years in 1841, while in 1851 he had bepome twenty. The widow Vahey, evidently his mother, lived seventeen years in ten, for in 1841 her age was thirty-three, and ten years- later she is stated to have been fifty. The case of the widow Hines is still more remarkable, for she lived twenty-one years in six; in 1841 she was sixty years old, but in 1847, when she died, she had attained the age of eighty-one. These are but a few instances of the .many remarkable discrepancies with which these só-called census returns - abound. In addition to this, they are hearsay under the rule that health certificates, in spite of provisions of the statutes seeming to permit their introduction in evidence, are repudiated as such. (Davis v. Supreme Lodge, Knights of Honor, 165 N. Y. 159 ; Buffalo Loan, Trust & S. D. Co. v. K. T. & M. M. A. Assn., 126 id. 450 ; Beglin v. Metropolitan Life Ins. Co., 173 id. 374.)

The judgment and order should be affirmed, with costs.

Hirsohberg, P. J., and Rich, J., concurred; Woodward and Miller, JJ., dissented.

Judgment and order affirmed, with costs.  