
    Hannah C. Brink, Resp’t, v. The Guaranty Mutual Accident Ass’n, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 2, 1889.)
    
    1. Insurance (accident)—Misrepresentations in application
    Where the insured correctly gave to defendant’s agent the year of hi» birth, but the agent, in entering his age, made a miscalculation, Held, that this did not constitute a misrepresentation.
    3. Same—Occupation.
    The application stated that the insured was a “livery stable proprietor, not working.” It was shown that he hired men to do the work, but sometimes harnessed and drove the horses. Held, that the statement sufficiently apprised defendant of the character of his duties, and if anything more definite was required it was defendant’s duty to ascertain the facts by proper inquiries.
    3 Same.
    There was evidence that deceased had been thrown from a horse, striking his head, and had fits. There was also testimony by those who knew him for years that he was robust and strong, and that they never knew of his having any ailment. Held, that the weight of evidence was not in favor of a misrepresentation as to physical condition.
    4. Same—Proofs of injury—Waiver.
    The company, by receiving and retaining the proofs of injury, waive objections to their regularity.
    Appeal from judgment in favor of plaintiff for $4,000 and costs.
    Action to recover on a policy of accident insurance issued by-defendant to plaintiff on the life of her husband. Defense,, among other things, breach of warranties in the application and irregularity in the proofs of injury.
    The application stated that the assured was fifty-nine years of age; that he was a livery stable proprietor, not working; that his duties were those required in that occupation; and that he was not suffering from any disease which would retard recovery or be aggravated by personal injuries; that he never had fits, disorders of the brain or bodily or mental infirmity which would thereby -render him liable to personal injuries.
    
      Four days after the certificate was issued, viz.: February 25, 1888, while entering a store, he tripped and fell upon a stove, receiving a wound on his face and head which grew worse until he died on March 21, 1888. Proofs were served upon and retained by defendant.
    It appeared that deceased was sixty-two years old, but it was shown that he gave the year of his birth to defendant’s agent who filled out the application, and that the latter made a miscalculation in making the entry.
    It also appeared that the deceased occasionally harnessed and drove horses.
    There was evidence that deceased had fallen from a horse and had struck his head; that he had had fits, etc. On the other hand there was evidence given by friends of long standing that he was of robust health and that they did not know of his having had any ailment.
    
      Lewis S. Burchard, for app’lt; W. F. O'Neill, for resp’t.
   Pratt, J.

All the questions of fact in this case were properly submitted to the jury and the issues decided in favor of the plaintiff. The verdict is amply sustained by the evidence.

The first defense alleges a breach of warranty as to age, occupation, duties and physical condition; all of these questions of fact were submitted to the jury under an unexceptionable charge, .and that must be held conclusive. It is clear that there was no -deception or fraud in regard to the age of the insured, as the agent was informed of his true age and made the mistake in putting it down.

What was stated as to the duties sufficiently apprised the defendant of their character, and if anything more definite was re.quired it was the duty of the company to ascertain the facts by proper inquiries.

Neither is the weight of evidence in favor of the proposition that any misrepresentation was made as to physical condition.

There was no dispute that the assured was injured, and the .question whether the accident caused his death was decided by the jury upon conflicting testimony in favor of the plaintiff.

The notice and.proofs of injury and death while, perhaps, not technically what were required by the policy, were served upon the company and retained bv them, and further or more definite notice and proof were waived. Keeney v. Home Ins. Co., 71 N. Y., 396; Brink v. Hanover Ins. Co., 80 id., 108.

The case of Aldrich v. The Mercantile Mutual Accident Association we do not regard as in point. In that case the different duties pertaining to the occupation of the assured had been classified, and the question was under what class did the assured’s occupation fall at the time of the injury. It was not claimed that there was fraud in the warranty which rendered the policy void, but it was a question as to the construction of the policy. ' In this case the claim was made that the warranty was false. It was, therefore, a question of fact to be determined by the.-jury upon conflicting testimony.

We have examined with care the very able brief of the counsel for defendant, but are unable to find "in the record any errors sufficient to warrant a reversal of the judgment.

It is therefore affirmed, with costs.

Dykman and Cullen, JJ., concur.  