
    (27 Misc. Rep. 540.)
    WEINTRAUB et al. v. METROPOLITAN LIFE INS. Co.
    (Supreme Court, Appellate Term.
    May 24, 1899.)
    1. Action by Infants—Guardian Ad Litem—Liability for Costs.
    Failure of a guardian ad litem to file written consent to be responsible for costs, as required by Laws 1882, c. 410, § 1295 (Consolidation Act), Is ground for a dismissal of action in the municipal court.
    2. Life Insurance—Forfeiture—Statements as to Health of Insured.
    A life policy provided that it should be void if, before its issuance, insured had been attended by a physician for any serious complaint, or if he had been afflicted with any disease of the kidneys. Insured died within two years after its issuance, and a statement of the physician attending him in his last illness declared that insured had been afflicted with renal.colic, but not within two years. There was evidence that insured' had undergone an operation for gallstone about three years before his death. Held, that a recovery on the policy was not supported.
    Appeal from municipal court, borough of Manhattan, Fifth district.
    Action by Bernhard Weintraub and another, by their guardian ad litem, against the Metropolitan Life Insurance Company. There was a judgment for plaintiffs, and defendant appeals.
    Reversed.
    Argued before FREEDMAN", P. J., and MacLEAN and LEYEN-TRITT, JJ.
    Ritch, Woodford, Bovee & Wallace, for appellant.
    Louis Diamant, for respondents.
   MacLEAN, J.

Two issues, among others, were raised by the pleadings,—the legal capacity of the plaintiffs to bring the action, and the validity of the policy from the outset.

It was alleged in the complaint, and denied in the answer, that the plaintiffs were infants, and that Louis Diamant, above named, was duly appointed their guardian ad litem. No proof was offered to sustain this allegation. At the opening of the case, counsel for the defendant moved for the dismissal of the complaint because the appointment of the guardian ad litem was irregular, in that the person apparently appointed had not signed and filed a consent to be responsible for costs. This objection is a substantial one. Consol. Act, § 1295 (Laws 1882, c. 410). In a court of record it would have been obviated by due permission to sue as a poor person, but section 469, Code Civ. Proe., as amended, is not applicable to proceedings in the municipal court, although other provisions relating to parties prosecuting and defending as poor persons have been made so. Id. § 3347, subd. 3.

The other ground urged for reversal is even more serious. The policy upon which the action is brought, and which was introduced in evidence on behalf of the plaintiffs, provided that the same should he void if the assured, before its date, had been attended by a physician for any serious disease or complaint, or had had, before that date, any disease of the kidneys. The policy was issued on October 5,1896. A statement of the attending physician, introduced in evidence on behalf of the plaintiffs, without- reference to or reservation of any particular part, declared that the deceased had been afflicted with renal colic, but not for two years next preceding his death, on July 27, 1898. Furthermore, the “statement of claimant,” dated July 28, 1898, presented to the company as part of the proof of death, recites that the deceased had an operation for gallstone in Lebanon Hospital about three years before. This was corroborated by the testimony of the superintendent of the hospital that the deceased was an inmate thereof in June, 1896. The evidence introduced by the plaintiffs, or furnished by them, that the assured had been attended by a physician for a serious disease before the date of his policy, requires the reversal of this judgment. It is not a hardship of which the plaintiffs may complain that the policy is invalidated because their father had had a serious illness before he applied for the policy. He knew this, and he should have communicated it to the proper officer of the company, and procured a waiver of the condition in the policy.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.

FREEDMAN, P. J., concurs; LEVENTRITT, J., concurs on the first ground stated.  