
    Anna Megrue, Resp’t, v. The United Life & Accident Insurance Association, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    1. Insurance (Lies)—Trial.
    It is not error to try an action upon a policy of life insurance at circuit with a jury where an affirmative equitable defense is pleaded.
    
      2. Same—Evidence.
    Where the policy and admissions in the answer and on the trial make out & prima fade case, it is not error for the court to refuse to require the plaintiff to put the application for insurance in evidence.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for a new trial.
    
      Harry Wilber, for app’lt; James C. Bergen, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying'a new trial upon the minutes.

The action was upon a life insurance policy, and the defense was an affirmative one based upon allegations that the deceased made false answers in his application for insurance.

The issues submitted to the jury were three in number, viz.: 1st. Whether the application for insurance was made December 31, 1889, or on January 9, 1890. 2d. Was the deceased’s answer to question No. 7 in his application a true answer, and, 3d. Did the deceased make a true answer to the question: “ Have you ever had any serious illness, local disease or personal injury.”

It is apparent, and the court so instructed the jury, that if they found in the affirmative upon the first question, i. e., that the application was made on December 31, 1889, there was no occasion to consider the second question, as it was conceded that at that time there had been no refusal by any other company to issue a policy upon any application made by the deceased.

Upon the first question there was much evidence taken, and it was of a highly contradictory character. We think as the matter stood the court properly submitted the case to the jury, and that their verdict must stand.

The main issue was upon the third question, to wit, the physical condition of the insured at the time the insurance was effected.

The defendant assumed the affirmative upon the issue that the deceased falsely answered the question as follows: Have you ever had any serious illness, local disease or personal injury ? ” Upon this issue much evidence was taken, and we cannot say there was any such preponderance of testimony as to require the court to take it away from the jury, and it is entirely clear that the verdict is sustained by the evidence.

But the defendant claims that inasmuch as an affirmative equitable defense was pleaded it was error to try the cause at circuit with a jury.

One answer to this proposition is that it was tried at circuit without objection, and another is that a judge in an equity case can seek the verdict of a jury to inform his conscience.

Another ground of error is that the plaintiff did not put in evidence the application for insurance made by the deceased. The policy and the admissions in the answer and upon the trial made out a prima facie, case, and it was in the discretion of the judge whether to require the plaintiff to put in the application or not

The defendant was not prejudiced by his refusal to so order.

It was pre-eminently a case for a jury to determine, as it involved disputed questions of fact, and conflicting testimony, and the credibility of witnesses. There was evidence to support the contentions of both parties. Under such circumstances the verdict must stand.

We have examined all the exceptions, and find no error sufficient to warrant a reversal of the judgment or the granting of a new trial.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  