
    Terwilliger v. Supreme Council of the Royal Arcanum.
    
      (Supreme Court, General Term, Second Department.
    
    June 25, 1888.)
    1. Insurance—Actions on Policies—Declarations of Insured.
    In an action on a life insurance policy, declarations of the insured, prior to taking out the policy, are not admissible to show a false representation in his application with reference to his physical condition, unless attended by some acts on his part or other circumstances showing such condition.
    2. Same—Evidence—Former Examination of Insured.
    In such case the report of an examination of the insured by the board of police surgeons, made several years before the policy issued, and not shown to have been known to the insured, was properly excluded as secondary evidence.
    Appeal from special term, Kings county.
    
      Action by Emma L. Terwilliger on a certificate of insurance issued by the Supreme Council of the Boyal Arcanum, upon the life of her husband, Abram Terwilliger. The trial court, on defendant’s motion, set aside the verdict for plaintiff, and awarded a new trial. On appeal, the general term reversed this order, and directed judgment for plaintiff on the verdict. From this judgment defendant appeals. It appeared that assured had been on the police force several years prior to taking the insurance, and had been examined by the board of police surgeons, and the rejection of their report is one of the errors assigned.
    
      George V. Brower and Thos. E. Pearsall, for appellant. Sidney Williams and G. B. Van Wart, for appellee.
   Pratt, J,

This is an appeal from a judgment in favor of the plaintiff for $4,201.09 damages, and costs. The cause was tried at a Kings county circuit and a jury, on February 2,1887. Thereafter the justice set aside the verdict on the ground that it was against the weight of evidence, and granted a new trial. Plaintiff thereupon appealed, and this general term reversed the order granting a new trial, and judgment was accordingly entered upon the verdict. This court has already decided that the verdict is not so manifestly against the weight of evidence that it ought not to stand. There was no such preponderance of evidence in favor of the defendant as to evince that the verdict was the result of mistake, passion, or prejudice, even if the question was again open for review. It is also true that on an appeal from an order granting a new trial the whole merits of the case ate under review, and the court is not confined to the precise grounds upon which the decision below was based. People v. Supervisors, 70 N. Y. 228; Mackay v. Lewis, 73 N. Y. 382; Krekeler v. Thaule, Id. 608. As to the practice upon such appeals, see sections 190, 1336, 1350, Code Civil Proc., and Raynor v. Raynor, 94 N. Y. 248. We do not deem it necessary to again review the evidence, as we have already held it was sufficient to warrant a verdict for the plaintiff. There are, however, two exceptions that require notice.

1. The defendant offered evidence, which was excluded, of declarations made by the deceased prior to taking out the policy, inconsistent with the warranty contained in his application for insurance. The conclusive answer to this exception is that such declarations, so far as they had reference to his acts or any fact connected with his bodily condition, were permitted to be proved. The exception, therefore, did not fall within the rule laid down in Swift v. Insurance Co., 63 N. Y. 186, and Edington v. Insurance Co., 67 N. Y. 185. The evidence excluded related to declarations unattended by any act or fact, and was therefore inadmissible.

2. It was not error to exclude the report of the police surgeon. Such paper was secondary evidence. It does not appear that the deceased had any knowledge of its contents, or was in any manner responsible for the paper, and the contents could better be proved by the doctor upon the witness stand. But the report was shown a witness (Dr. Burdick) to refresh his recollection, and he then gave a detailed account of the condition of the deceased, so that all the information acquired by the police surgeons, while sitting as a board of surgeons, was admitted as evidence. The testimony in regard to ruptures was immaterial, as it appeared that the surgeon who examined deceased for the defendant made a mistake in putting down the answers, and that such answers disclosed to him the fact that deceased had been troubled with ruptures. The ease was fully and fairly tried, and submitted to the jury under an unexceptionable charge. It is true, many exceptions were taken during the trial, but all proper evidence seems at some time to have been admitted and given its just consideration by the court and jury. Judgment affirmed, with costs.  