
    Mary Read, Respondent, v. The Metropolitan Life Insurance Co., Appellant.
    (City Court of New York, General Term,
    June, 1896.)
    1. Trial — Reopening case.
    "Where a motion is made to dismiss on the ground of a failure of. proof, the court has power, in its discretion, to allow the plaintiff's case to be reopened to supply the proof needed.
    2. Life insurance — Evidence — Application.
    An application for life insurance which on its face shows a subscribing witness is not admissible unless it is proved by such witness or his absence is accounted for.
    3. Same.
    Proof that the policy in question was issued upon such application . is not sufficient to identify it, but it must be shown that it was made by the insured for the issuance of the policy.
    Appeal from judgment in favor of the plaintiff, entered upon, a verdict directed by the court. • •
    Max Altmayer, for respondent.
    Arnoux, Riteh & Woodford, for appellant.
   Conlan, J.

This is an appeal from a judgment entered in favor of the plaintiff upon a verdict directed by the court.

The action is upon a life insurance policy issued by the defendant February 20, 1893, upon the life of one Edward O’Neill in favor of the -plaintiff. The making and issuing of the policy, the payment of the premiums and the death- of the insured are admitted. The appellant relies upon exceptions taken at the trial.

At the close of the plaintiff’s case, counsel for the defendant moved to dismiss on the ground that the proofs of .death had not been served on the company, as required by the policy,

This motion was opportune and well taken, as the case then stood; but the court in the exercise of its discretion' allowed the plaintiff to reopen her case and .supply the proof. ' , - :

We think the proof subsequently introduced made out a prima facie case, and the motion was properly denied. V ■ ■ -

The application (at folio 82, marked “ For identification ”) was properly excluded. The application on its face shows a subscribing witness. His ■ death is not claimed, nor is his absence accounted for.

The statute clearly shows or points the way to prove .an instrument authenticated by, a subscribing witness. This method was' not employed.

■ On the contrary, the defendant introduced one of its employees who testified that he was familiar with the issuing of policies on applications presented to the company, and that the policy in question was issued on the application offered in evidence. This was not enough. It was .incumbent- on the defendant to show that the application offered was not only the application on which' the policy issued, but that it was the application made by' the insured for the issuance of the policy.

The testimony of the ■ plaintiff before the coroner as to the insured’s' health presented a question that might have been submitted to the jury, but the defendant’s counsel did not ask to go to the jury on the question of fact,;' contenting himself to rest his cáse on his motion to dismiss.

- We- think the motion for a direction was properly granted, and the judgment is affirmed, with costs.

Van Wyck, Ch. J., and O’Dwyer, J., concur.

Judgment affirmed,, with costs.  