
    Mary Clemans, Resp’t, v. The Supreme Assembly of the Royal Society of Good Fellows, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March, 15, 1892.)
    
    1. Benefit societies—False statements.
    Insured stated in his application that he had applied to another insurance company, but had not been rejected, whereas he had applied to another company and had leen rejected. Held, that such answer being a part of the contract of insurance, and being false, avoided the contract.
    3. Same—Knowledge of agent.
    It is not important that the party making the warranty really believed in its entire truth, nor does the mere knowledge of the agent of the company at the time when it was made that the warranty was false prevent defendant from setting up the breach as a defense to the action on the policy.
    
      (O’Brien v. Home Benefit Soe. of H. T., 117 FT. Y., 310; 27 St. Hep., 326, distinguished.)
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.
    
      S. M. Idndsley, for app’lt; 0. Morsfhauser, for resp’t.
    
      
       Reversing 38 St. Rep.,1019.
    
   Per Curiam.

The uncontradicted evidence in this case clearly showed that the assured just prior to June 20, 1887, applied for insurance by means of a written application signed by him to the Prudential Life Insurance Company of America, and on that date his application was rejected by that company.

The learned court found that the, assured .made no false statements in his application for insurance to the company defendant. In such last mentioned application he stated in answer to questions asked therein, that he had applied to another insurance company for insurance, but had not been rejected. That this answer was false cannot be disputed upon the uncontradicted evidence. The application and the answers thereto were part of the contract of insurance and were made so ■ by the certificate. The answer was a warranty, and upon this evidence there was a breach thereof. • Foot v. Ætna Life Ins. Co., 61 N. Y., 571; Cushman v. U. S. L. Ins. Co., 63 id., 404.

It is not important that the party making the warranty really believed in its entire truth. If it- be false it avoids the contract. Nor does the mere knowledge of the agent of the company at the time when it is made, that the warranty is false, prevent the defendant from settling up the breach as a defense to the action on the policy. Id.; Barteau v. Ins. Co., 67 N. Y., 595.

The finding of the learned trial judge that the application of the assured to the Prudential Life Insurance Company was withdrawn was not supported by any evidence, as we think, while the finding that the facts were within the personal knowledge of the-agent Jacobs, who procured this insurance, furnishes no answer to-this charge of breach of warranty. Mere knowledge of the falsity is n'ot, as we have seen enough to prevent the defense from being set up.. There is, as we think, sufficient evidence in this case to-permit a jury to find that the agent of the defendant fraudulently concealed from the assured the fact that he had been rejected by another company to which he had applied through this same agent, and that such agent while himself aware of the fact of such rejection, procured the assured to make application to this defendant through him as agent of the .company and to innocently state that he had not been rejected by any other company, when the agent knew such statement was false. If such were the case we think the defendant would not be entitled to set up the breach of a warranty which had been thus procured. The case in such aspect would much resemble that of Plumb v. Ins. Co., 18 N. Y., 392.

. There is evidence on the part of the defendant which contradicts this theory, for the agent swears the assured was rejected June 20, and that within two weeks thereof he so informed the assured and returned him the premium. What the trial court states in one of the findings in this case we think amounts to merely a statement of knowledge of the agent as to the falsity of the warranty when it was made. This is not a defense. There is no finding of fraud and there is evidence in the case which if believed shows there was none. We cannot draw the inference-of fraud in the first instance for the purpose of supporting a judgment, even where there is evidence which would permit the in- „ ferenee, because there is also evidence which, if believed, negatives-its existence, and the judgment does not proceed upon the ground of fraud.

There is no evidence that the answers to the application were-truly made and erroneously taken down by the agent of the company, and hence it does not come within the O’Brien and other-kindred cases. O'Brien v. Some Benefit Society of New York, 117 N. Y., 310; 27 St. Rep., 326.

We must reverse this judgment and grant a new trial, costs to abide the event

All concur.  