
    Marie Perrin, Respondent, v. The Prudential Insurance Co. of America, Appellant.
    (City Court of New York, General Term,
    November, 1899.)
    Life insurance — Immaterial failure of tbie insured to volunteer information that he had another employment.
    An applicant for life insurance correctly answered the question of the application relative to his “ Present occupation ” by stating: “ Store-keeper, dry goods ”. He was not asked whether he had any other employment. It appeared that at times he had also been employed as a glass polisher. It was admitted that the insured was-considered by the insurer a good risk at the time when the policy was issued.
    Held that the answer contained in the application was not false and that it afforded no defense to a recovery on the policy.
    Appeax from a judgment-, entered upon a verdict directed by the court, and from an order denying a motion for a new trial.
    William C. Campbell, -for appellant.
    Nathan, Leventritt & Perham (Frederick E. Perham, of counsel), • for respondent.
   Coexapt, J.

The action is based upon a policy of insurance issued by the defendant on the life of the plaintiffs husband, Constant Perrin.

The application contained the usual warranty and it was insisted by the defendant, upon the trial, that certain statements by the assured in the application were untrue, and that there was, therefore, a breach of the warranty and that the plaintiff could not recover. The evidence upon this point was as follows: “ Q. What is your full name? A. Constant Perrin. Q. Present occupation? A. Store keeper, dry goods.” And again to the medical examiner: “ Q. Present occupation? A. Dry goods.” And there was evidence that the assured was for certain portions of his time occupied as a glass polisher, and it was insisted that this constituted a breach of the warranty.

One of the defendant’s witnesses, the person who took the application for the policy, had known the family of the assured some time prior to and when the application was made, and he testified that the application was written out by him at 142 West Houston street where the assured resided and where he conducted a dry goods store. The defendant’s proof was' limited to attempting to show that, when the assured stated in his application that he was a store keeper of dry goods, he stated what was not true; and at the close of its case the defendant stated, in its motion to dismiss and upon its claim to go to the jury, that it relied upon these answers in the application. The defendant’s witness also testified on the cross-examination: “I had known Perrin when I took that application about three years. I took it at his store, 142 West Houston street, in this city. I knew Mrs. Perrin; I know her now, she resides there. I saw Mr. Perrin after his death at his store, 142 West Houston street; it was a dry goods store.-” The defendant’s physician says: “ I certified that I considered him a good risk and that I did not find him suffering from any disease. I found him in good health,” and, in answer to the court, he said: “ That statement of mine was true that he was in good health at that time.” Upon the testimony adduced and upon the limitation fixed by the defendant, the court instructed the jury to find for the plaintiff.

It was thus satisfactorily shown that the statement, that the assured kept a dry goods store was not untrue, nor could the fact that he was also employed at times as a glass polisher, make it untrue. There was no warranty that he was not engaged in any other business than storekeeper, and such other employment was, therefore, a breach. He was not asked the question as to any other employment, and the company’s agent knew him as a storekeeper. There can be no question but what the assured was a storekeeper of the kind described, and this affirmative statement cannot be said to be false.

In order to avoid a policy of insurance it must prove affirmatively that there was a false statement in the application. O’Shaughnessy v. Workingman’s Co-Operative Assn., 13 Misc. Rep. 188; 68 N. Y. St. Repr. 19. In the proofs of loss submitted by the plaintiff appears the following: “ Q. What occupation or occupations had he been engaged in since the above policy was issued? A. Glass polisher.” And upon the trial, the witness of the defendant says he obtained this statement from the person who signed the certificate of identity, and, on cross-examination on the same subject-matter, he says, “ the question in reference to which that answer is given is S. D. What occupation or occupations has he been engaged in since the above policy was issued?” If this is all there is on the subject of alleged breach of warranty, and it is within the limit fixed by the defendant itself, then we are unable to say that the direction of the verdict was error, calling for an interference with the determination of the court. That it is all is evidenced by the statements of counsel at the close of the testimony as follows: Defendant’s counsel: We ask leave to go to the jury. The Court: Upon what question? Defendant’s counsel: Upon the question whether or not the answers in the application are true. The Court: What answer do you refer to? Defendant’s counsel: In regard to his occupation. The Court-: There is no such question which can be submitted to the jury. There is no dispiite as to the question of breach or concerning it.”

In this we do not find any error and as no other reason is given or urged for disturbing the judgment, we are of opinion that the judgment and order appealed from must be affirmed, with costs.

Pitzsimons, Ch. J., and McCarthy, J., concur.

Judgment and order affirmed, with costs.  