
    FLORENCE VAN VALKENBURGH aud JOHN L. VAN VALKENBURGH, Administrators, etc., Respondents, v. THE AMERICAN POPULAR LIFE INSURANCE COMPANY, Appellant.
    
      Life inwwram.ce — wa/rranties—Conditions ly which, 'policy is avoided — hv/rden of proof as to, rests on company.
    
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought upon a policy of insurance issued upon the life of Lawrence H. Van Valkenburgh, deceased.
    The court at General Term, after holding that the case of Fitch v. The American Popular Life Ins. Co. (59 N.Y., 564) establishes, that the defense of a breach of warranty could not be interposed in this action, and that the only defense available arising from any misstatement or misrepresentations of the assured in his application, must arise out of fraud, proceeded as follows: “ The only other defense suggested by the answer is, that the insured died of a disease induced or aggravated by intemperance, whereby, by the terms of the policy, it was to become void. One of the points made by the defendant relates to the burden of proof upon this subject. The court held it was upon the defendant; to which exception was taken. This ruling seems to accord with general principles. The obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue. (1 Gr. Ev., § 74; Piedmont cmd A. Life Ins. Co. v. Ewing, 2 Otto, 377.) This is one of many conditions upon which the policy was to become void. They are, therefore, conditions in avoidance of the policy, and are to be alleged by way of answer, and proved as substantive defenses. (2 Gr. Ev., § 402.) They are not conditions precedent. In eases of suicide, I understand, it has been held that the burden of proof is upon the defendant where that fact is relied upon to avoid the policy. (Bliss on Ins., 584, 585, and cases cited.)
    But if any error upon this subject was committed it was after-wards remedied by a full investigation of the facts pertaining thereto.”
    
      Amasa J. Parker, for the appellant. George Bliss, for the respondents.
   Opinion by

BoaedmaN, J.;

Learned, P. J., concurred.

Present — Leaened, P. J., Bocees and Boaedman, JJ.

Judgment and order affirmed, with costs.  