
    Louise Fletcher, Respondent, v. Bankers Life Insurance Company of the City of New York, Appellant.
    First Department,
    December 3, 1909.
    Insurance — warranties made on former application embodied in subsequent application — application for other insurance — breach of warranty.
    Where the medical examiner of an insurance company instead of asking certain questions appearing in the application, inserted a note that the applicant ' asserts that statements made in a certain prior application for another policy still hold good and valid in regard to the present examination, there is a reiteration of the truth of the answers given on the former examination.
    Where on such prior application the applicant denied that he had applied to any other company for life insurance and had been rejected when in fact he had made such application for insurance, and, although his case was postponed for a further examination, the policy was refused' before his second application, there is a breach of warranty in the policy issued on his third application which' bars a recovery by his beneficiary.
    Appeal by the defendant, the Bankers Life Insurance Company of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of April, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 16th day of April, 1909, denying the defendant’s-motion for a new trial made upon the minutes.
    
      Wilson B. Brice, for the appellant.
    
      Leslie-C. Ferguson, for the respondent.
   Ingraham, J.:

This action was brought upon a policy of life insurance issued by the defendant on July, 12, 1906, by which the defendant undertook to pay to the plaintiff the sum of $2,500 upon the death of Walter Fletcher. The defense was a false statement made by the insured to the medical examiner of the company, upon which the defendant • issued the policy in suit. It seems that in the year before the deceased had applied for insurance in the Life Association of America, and on his medical examination upon that application he vyas asked how long since he had consulted a physician, and in reply stated that he had not consulted a physician for thirty-five years. He was further asked if any physician had' ever given an opinion that he was not safely insu'rable, to' which the answer was no. He was also asked: “ Have yon ever made an application for life insurance, upon which a policy was not issued, or, if issued, oil a different plan than the one applied for?” to which he answered “Ho.” This examination was had and the certificate signed by the deceased ■ on August 1,1905. On July 12,1906, he applied for insurance in the defendant company. The medical examiner of the defendant having this examination of August 1,1905, instead of repeating the question inserted in .the application the following: “ The applicant asserts that the statements made in examination in policy Ho. 4937 in the Life Ass. of America on July 28, 1905, and again on Aug. 1, 1905, still hold good and arc valid in regard to this examination. There is no change from Jast examination of August, 1905, except the. Ins. taken in the Metropolitan Life Co.,” and this was signed by the deceased. ' As a part of this medical examination, the deceased also signed the following: “All the statements made to the medical examiner, as well ás those contained in my application, are the basis and form a part of the proposed contract for insurance, subject to the charter and by-laws of the.company and the laws of the State of Hew York. ' I hereby agree that all the foregoing statements and answers, and all those that 1 make to. the medical examiner in continuation of this application, are by me warranted to be true, and are offered to the company as a consideration of the contract, which I hereby agree to accept, and which shall not take effect until the first premium shall have been paid to the company. * * * I certify that my answers to the foregoing questions and my statements are correctly recorded,” which was signed by the medical examiner.

It was then ■ proved that in 1905 the insured had been ill at Olean, H. Y; that he had been attended by a physician at that place and had been treated for such illness; that his illness was acute gastritis with nausea, vomiting, chills, fever with weakness of heart, and that he had been treated for such illness continuously from September 30, 1905. It also appeared that in the year 1905 he had made an application for a policy of insurance to the.Mutual Reserve Life Insurance Company and had been examined by the physician of that company on July 21, 1905, and that his'application had been rejected on July 28, 1905. The physician conducting this last examination testified that while there was a statement in the examination of July twenty-first that the application was reserved for future examination, tiie application was really rejected on the twenty-first of July.

At the end of the trial both parties applied for the direction of a verdict and neither party requested the court to submit any question to the jury. The court subsequently directed a verdict for the plaintiff, stating that it was of the opinion that the description of the words inserted in this medical examination was intended as a reiteration of the truth of the answers given on the prior examination (62 Mise. Bep. 546), and I think they fairly bear that construction. The court also held that the words “ there is no change from last examination of August, 1905, except the Ins. taken in the Metropolitan Life Co.,” were to be construed as meaning that in the opinion of the witness his physical condition was not changed, and the fact that he had a temporary illness of a few weeks duration after the last examination was not a breach of that covenant. I do not think it necessary to decide this question, because I think the evidence conclusively establishes the fact that the insured had made an application to the Mutual Beserve Life Insurance Company on July 21, 1905, which had been rejected at least on July 28, 1905. Upon the examination of the 1st of August, 1905, upon which this policy was based, he was asked: Have you ever made an application for Life Insurance, upon which a policy was not issued, or if issued, on a different plan than the one applied for ? ” To which he answered, no. He had made an application to the Mutual Beserve Fund Association prior to July 21, 1905, had been examined on July twenty-first and a policy was not issued upon that application. The trial judge said in his opinion that the testimony on this branch of the case is very unsatisfactory and leaves one under the conviction that this medical examiner, at most, told the deceased that he was postponed for a further examination. Assuming that he was so told on the twenty-first of July, the deceased knew at the time he was examined that he had made an application to the Mutual Beserve Life Insurance Company for life insurance and that a policy had not been issued. His answer, therefore, to that question was clearly false. This rejection by another company was most material. It seems to me that this was'a clear breach of the warranty.

It follows that the judgment appealed from is reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to' appellant to abide event.  