
    BOLAND v. INDUSTRIAL BEN. ASS’N.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    L Life Insurance—Application—Warranties.
    An applicant’s answers to the questions how long since she required the services of a physician, the latter’s name and address, and whether she has had in the past five years, or is subject to, any bladder or kidney trouble, are warranties material to the risk.
    8. Same—Proof of Breach.
    When assured’s attending physician, a reputable practitioner, testifies that he attended assured for a disease warranted against in her application as material to the risk, the mere facts that assured’s husband, who was much away from home at the time, did not know of such attendance, and that a surgeon attending assured in child-birth thereafter did not discover the disease, which he admits is one only to be discovered by special examination, do not justify the court in submitting the case to the jury.
    8. Same—Physician’s Certificate to Proof of Death.
    The beneficiary is not concluded by the doctor’s certificate annexed to the proof of death, and may prove his protest thereto.
    Appeal from circuit court, Albany county.
    Action by William S. Boland against the Industrial Benefit Association of Syracuse on a certificate of insurance on the life of Mary B. Boland, plaintiff’s wife. Judgment for plaintiff. Defendant appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    William F. Beutler, for appellant.
    O’Brien &. Addington, (George Addington, of counsel,) for respondent.
   PUTNAM, J.

In the application of deceased for insurance the following questions were asked and answers given:

“(22) How long since you- required the services of a physician? (a) Four months. (23) For what disease or trouble? (a) Child-birth. (24) Give name and address of physician? (a) Dr. Joseph Lewi, corner of Trinity Place and Westerlo St., Albany, N. Y. * * * (27) Have you had during the past five years, or are you subject to, any of the following diseases, or any not named herein? * * * Any bladder or kidney trouble? * * * If yes, state fully, (a) None that I know of.” •

The above answers, made by deceased in her application, should be deemed warranties, and, if untrue, avoid the policy issued by defendant on which the action is brought. Such answers are not only warranties, but also to be regarded as material to the risk. Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. 654; Higbie v. Insurance Co., 53 N. Y. 603. Dr. Gravaline, who attended the deceased in her last illness, testified that within four months prior to the time of her application, on two occasions, he attended deceased for chronic cystitis, or inflammation of the bladder. If this statement of Dr. Gravaline’s is true, the policy on which the action is brought, by its terms, was null and void. The assured not only answered untruly, as to being attended by Dr. Gravaline within four months, but also suppressed the fact that she was treated for a bladder difficulty, and that she had such a disease within five years. Dr. Gravaline testified that he was not in any way connected with defendant. He was the physician of deceased, who attended her in her last illness, and it was not suggested that he was not a disinterested witness or reputable physician. After a careful review of the evidence, we are unable to find that his testimony is in fact contradicted. All that the plaintiff testified to was that Dr. Gravaline did not attend his wife in August, to his knowledge. But he stated that he was at work, and absent a portion of the time. If the doctor had been there, his wife, he thought, would have told him. He had no personal knowledge at all on the subject. Therefore the positive statement of Dr. Gravaline that he attended deceased twice within four months from the date of the application was not satisfactorily denied. The testimony of the plaintiff that he (plaintiff) did not see the doctor at his house,—inasmuch as plaintiff was absent attending to his work a part of the time,—is not inconsistent with the evidence given by the doctor. Nor does the statement of plaintiff that, had the doctor been there in August, his wife, he thought, would have told him, have any force as evidence. The testimony of Dr. Gravaline that at the time mentioned he attended the deceased for a difficulty of the bladder is not contradicted. The fact that,Dr. Allen four months later did not observe any symptoms of that disease is not inconsistent with Dr. Gravaline’s statement. Dr. Allen testified that there are no outward manifestations of chronic cystitis. That it is a disease that requires an examination to detect. He did not examine her for that disease in December, and could not swear that she had at that time had no symptoms of cystitis, or that she had not had. He did not ask her any questions in reference to any of the symptoms of a bladder difficulty. This testimony of Dr. Allen’s cannot be deemed a contradiction of the evidence of a disinterested physician that four months prior to this introduction of Dr. Allen to deceased he had attended her for a disease of the bladder. The case discloses, therefore, the warranty as above set out; the positive statement of a reputable and disinterested witness,—the witness employed by deceased as her physician,—showing the falsity of her answers to the questions in the application" constituting the warranty, and no satisfactory contradiction of his testimony. It must be deemed established that Dr. Gravaline visited the assured in August, and that he treated her for a bladder difficulty. After a careful consideration of the testimony we cannot resist the conclusion that such are the facts. At the most, there was a mere scintilla of evidence tending to contradict Dr. Gravaline’s statement Such being the case, we think the trial judge should have directed a verdict for the defendant, instead of submitting the case to the jury. . Dwight v. Insurance Co., 103 N. Y. 359, 8 N. E. 654; Linkauf v. Lombard, 137 N. Y. 417, 426, 33 N. E. 472; Bulger v. Rosa, 119 N. Y. 459-464, 24 N. E. 853.

It is proper to say that we do not think plaintiff was concluded by the certificate of Dr. Gravaline, annexed to the proof of death; also we are of the opinion that the trial judge did not err in allowing plaintiff to prove his protest to the certificate of the doctor; but we hold that the evidence given on the trial shows that the certificate was true. The judgment should be reversed, a new trial granted, costs to abide the event. All concur.  