
    The Buffalo Loan, Trust & Safe Deposit Co., as Guardian, Resp’t, v. The Knights Templar & Masonic Mutual Aid Ass'n, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    1. Insurance (Life)—Proof of death.
    Where there is nothing in the contract requiring the cause of death to be stated in the notice of death, a statement of the cause of death in the physician’s certificate is not evidence of that fact and is properly excluded. The cause of death is. matter of defense which must be proved by common law evidence.
    3. Same—Evidence.
    Defendant’s president testified without objection that proofs of death were furnished and were in defendant’s possession at the trial. Held, not. error to refuse to strike out this testimony.
    3. Same.
    Records or books of the board of health are not evidence as to the cause-of death on the trial of an action at law where that question is material.
    Appeal by defendant from a judgment entered upon the verdict of a jury.
    
      Leroy Parlcer, for app’lt; John €r. Milburn, for resp’t.
   Corlett, J.

In June, 1879, John Eoberts became a member of defendant, which issued to him a certificate to the effect that it would pay to said Eoberts, his heirs, executors or administrators the sum of $5,000 within sixty days after notice and satisfactory proof of his death. Eoberts died in January, 1885, leaving one son, Frank Eoberts, his only heir.

Proof of death was furnished to the defendant arid in the certificate of the physician who attended him was the statement that John Eoberts died from delirium tremens, which, if true, would have avoided the policy. The company refused to pay, and soon after this action was brought. The cause was tried in February, 1889, before Justice Lewis and a jury. The trial resulted in a verdict for the plaintiff upon which judgment was entered, and the defendant appeals.

It was a part of the contract that, “ upon due notice and satisfactory proof of the death of a member of the association, the finance committee shall, within sixty days, pay, etc.” There is nothing in the contract of insurance which requires that those representing the deceased should state in their notice of death its. cause. In this case the physician who attended the deceased during his last illness certified to a cause of death which, if true, would have defeated a recovery. On the trial that part of the doctor’s certificate stating the cause of death, on objection, was excluded, and the defendant’s counsel excepted. The leading contention of the learned counsel for the defendants is that this was error. It is obvious that the ruling of the trial justice on this' point was correct. The only duty which devolved upon the plaintiff was to prove death. Its cause is a matter of defense which must be proved by common law evidence. Goldschmidt et al. v. Mutual Life Ins. Co., 102 N. Y., 486; 2 N. Y. State Rep., 421.

The president of the company admitted that he was notified, of the death of Roberts and that proof of death was furnished, which was in defendant’s possession at the trial. These facts were testified to by the president of the company without objection. Afterwards the defendant moved to strike out his testimony on that subject, which was denied and defendant excepted. It was not error to refuse to strike out that testimony. Sherman v. Scott, 27 Hun, 331-334; Hincken v. The Mutual Benefit Life Ins. Co., 50 N. Y., 657.

There is no rale making the records or books of the board of health evidence as to the cause of death in the trial of an action at law where that question is material. Hothing but common law evidence would defeat a recovery in the absence of a statute or constitutional provision making other evidence competent. There is no law making the records of the board of health of the city of Buffalo evidence upon a trial between parties who do not make the records or books and have no duty devolving on them on that subject.

Ro errors were committed on the trial, and the judgment must-be affirmed.

. Dwight, P. J., and Macomber, J., concur.  