
    Robert Howard, Respondent, v. The Metropolitan Life Insurance Co., Appellant.
    (Supreme Court, Appellate Term,
    September, 1896.)
    1. Insurance (Life) — Breach of warranty — Admissions.
    The effect of a physician’s certificate forming- part of the proof of death, which tends to show a breach of warranty, as an admission thereof, is not conclusive where the proofs contain a contrary state-, ment signed by the. plaintiff.
    
      2. Same — Condition as to evidence.
    Where, however, the policy contains a condition that “ all the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against, the company,” such statement is not available to contradict the certificate.
    Appeal from judgment of the Sixth Judicial District Court, -rom dered by -the justice, without a- jury, in favor of the plaintiff. -
    
      Thomas F. Grady, for respondent.
    Bert Hanson, for appellant.
   Bischoff, J.

This appeal is taken from a judgment awarding to the plaintiff the sum named in two policies of life insurance, issued by the defendant upon the life of one Lizzie Howard, the wife of the plaintiff, he being the designated beneficiary.

The defendant pleaded a breach of warranty and claims that this defense was established upon the plaintiff’s proofs, the only evidence adduced at the trial, and that the justice below erroneously denied the motion for a dismissal of the complaint.

By the terms of each of these policies the insured had warranted the truth of a statement that she had never been sick nor attended by a physician, whereas among the proofs of death, received in evidence at the plaintiff’s instance, appeared a declaration by one Dr. Simson that the insured had required his attendance for one month, at a time prior to the date of the policy, when suffering from aneurism of the aorta, from which disorder she afterward died.

Were this evidence unexplained or uncontradicted upon the part of the plaintiff, it would be potent for.his defeat as an admission that there had been a breach of warranty as claimed, but evidence in contradiction of this statement of the physician appears from a paper subscribed by the plaintiff, and forming a part of the proofs of death admitted in evidence, wherein it is stated that the deceased had never been sick and had not at any time been attended by a physician.

This, at least, would tend to obviate the effect of the contrary admission and to authorize a finding that no admission had been intended, if the trial court saw fit so to find. Goldschmidt v. Mutual Life Ins. Co., 102 N. Y. 486.

No other evidence in support of the defense was furnished, and but for a condition contained in the second policy and next to be noticed, we should not be justified in disturbing the judgment.

This condition provided as follows: “ Proofs of death under this policy shall be made upon blanks furnished by the company. * * * All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against, the company.”

Such a condition is not invalid in its nature, it being competent to the parties to agree as to the effect which a certain form of evidence shall have in determining questions arising between them (see Gallagher v. R. R. Co., 14 Daly, 366), and in the present instance the condition was expressed in the most unmistakable terms.

As to this second policy, therefore, the admission of a breach of warranty appears without question, since but for the favorable statement contained'in the proof of loss the plaintiff adduced no evidence to contradict that admission, and the recovery upon such policy is properly assailed.

,We may not, however, affirm the judgment as to the first policy and reverse it as to the second, the action and the recovery having proceeded upon both claims jointly (Canavan v. Stuyvesant, 7 Misc. Rep. 113; Goodsell v. Tel. Co., 109 N. Y. 147), and a new trial of the issues arising upon both causes of action must necessarily result, unless the respondent shall abandon the second cause of action.

Judgment reversed and new trial ordered, with costs to appellant to abide the event, unless the respondent shall stipulate, within' twenty days after the entry of the order herein, to abandon his second cause of action, in which event the judgment, reduced by the amount of the recovery upon the second policy, is affirmed, without costs.

Daly, P. J., and McAdam, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event, unless respondent stipulates to abandon his second cause of action, in which event the judgment reduced by the amount of the second policy affirmed, without costs.  