
    John A. Schmitt, Resp’t, v. National Life Association, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 12, 1895.)
    
    1. Insurance—Life—False statement.
    A statement in the application that the insured is a year younger than, he actually, is, avoids the policy, in the absence of explanation.
    2. Same.
    The beneficiary is not estopped, in such case, from showing the true age of the insured or a mistake in such statement.
    Appeal from a judgment, efttered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      Stuart & Sutherland ( W. A. Sutherland, of counsel), for app’lt; Jordan & Holmes (Clark L. Jordan, of counsel), for resp’t.
   Putnam, J.

On the trial of this case, after the evidence was closed, the defendant’s counsel moved that the answer of the defendant be amended to conform to the proofs in the case in regard to the age of the assured, the proofs of death showing without contradiction that the assured was bora in 1841, while the application for insurance stated that he was bom in 1842. No objection appears to have been made to this application, and it was granted by the court, and the answer was amended by inserting at the end thereof the following clause:

“ That in and by the terms of the said application to the said Mutual Relief Society of Rochester, N. Y., and in and by the terms of the said application to this defendant, the said Louis Schmitt stated, represented and warranted that he was born on the 31st day of January, 1842, whereas, in 'truth and in fact, the said Louis Schmitt was born on the 30th day of January, 1841.”

Had plaintiff objected to the amendment, it probably would not have been allowed by the learned trial court. It set up a new defense, first interposed after the evidence was all in, and was not authorized by the provisions of section 723 of the Code of Civil Procedure. That section authorizes the court to conform the pleadings to the facts proved where the amendment does not change substantially the claim or defense. The amendment in question allowed the interposition of an entirely new defense.

If the court possessed the power to allow such an amendment after the evidence was in, the impropriety of such an allowance is apparent. The proofs of death were not conclusive on plaintiff as to the age of assured. He could have shown the real age of deceased, and that the statement in the proofs in that regard was erroneous. National Life Association v. Sturtevant, 78 Hun, 572 ; 61 St. Rep. 206; McMaster v. Insurance, Company of North America, 55 N. Y. 222 ; Cummins v. Agricultural Insurance Co., 67 id. 261. But, while the evidence was being taken on the trial, plaintiff had not been called upon to offer any evidence on the question of the age of the insured. There was no issue in that regard. Hence, had plaintiff interposed an objection, the court below, doubtless, would not have sanctioned the amendment in question.

But, having allowed the amendment, we are of the opinion that the court should have also granted the defendant’s motion for judgment, on the ground that it appeared that there was a plain breach of warranty as to the age of the assured. In the application the assured represented and warranted that he was born on the 31st day of January, 1842; while the proofs of death show that he was born, in fact, on the 30th day of January, 1841. In other words, by the proofs made and verified by plaintiff, and Which lie introduced in evidence on the trial, it was shown that in the application for insurance the assured, in answer to questions asked of him, had represented and warranted ■ himself as one year younger than he really was. Such answers were warranties, and will be regarded as material to the risk. Dwight v. Germania Life Insurance Co., 103 N. Y. 341; 3 St. Rep. 115; Boland v. Industrial Benefit Association, 74 Hun, 385 ; 56 St. Rep. 314. Such being the case, and as it appeared by the proofs of death made by the plaintiff, and, as above stated, by him introduced in evidence, that the assured, in his application- to the company, had misstated his age one year, the court, we think, should have granted defendant’s motion.

While, as we have seen, the plaintiff was not estopped by the pi’oofs from showing the true age of deceased, while he could have shown a mistake therein, in the absence of any explanation or other evidence the statement in the proofs as to the age of deceased should be deemed to establish the fact so stated. Daniels, J., in Kabok v. Phenix Insurance Co., 21 St. Rep. 203, says:

“But the fact did appear by the statement of the plaintiff herself, which was verified on the 24th of August, 1886, and made a part of the proof of death, that the person whose life was insured was born on the 10th of June, 1853, and no denial or explanation avoiding the effect of this admission Was made upon the trial; and that did establish the fact to be that the statement contained in the application concerning the time of birth and the age of this person was untruthfully given.”

We concur in the view so stated by the learned justice as to the effect of a proof of death made by a plaintiff in such a case.

See, also, Neill v. Insurance Co., 42 Super. 259 ; National Life Association v. Sturtevant, 78 Hun, 572; 61 St. Rep. 206; Parmelee v. Hoffman Fire Insurance Co., 54 N. Y. 198.

We therefore conclude that the judgment should be reversed, and a new trial granted; costs to abide the event.

All concur.  