
    (84 Hun, 128.)
    SCHMITT v. NATIONAL LIFE ASS’N.
    (Supreme Court, General Term, Third Department.
    February 12, 1895.)
    Life Insurance—False Statement as to Age.
    A statement in the application that the insured was a year younger than he really was avoids the policy.
    Appeal from circuit court, Fulton county.
    Action by John A. Schmitt against the National Life Association on two policies of insurance. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Stuart & Sutherland (W. A. Sutherland, of counsel), for appellant.
    Jordan & Holmes (Clark L. Jordan, of counsel), for respondent
   PUTNAM, J.

On the trial of this case, after the evidence was-closed, the defendant’s counsel moved that the answer of the defendant be amended to conform to the proofs in the case in regard to the age of the assured, the proofs of death, showing without contradiction that the assured was born in 1841, while the application for insurance stated that he was born in 1842. No objection appears to have been made to this application, and it was granted by the court, and the answer was amended by inserting at the end thereof the following clause:

“That in and by the terms of the said application to the said Mutual Relief Society of Rochester, N. Y., and in and by the terms of the said application to this defendant, the said Louis Schmitt stated, represented, and warranted that he was born on the 31st day of January, 1842, whereas, in. truth and in fact, the said Louis Schmitt was born on the 30th day of January, 1841.”

Had plaintiff objected to the amendment, it probably w’ould not have been allowed by the learned trial court. It set up a new defense, first interposed after the evidence was all in, and Was not authorized by the provisions of section 723 of the Code of Civil Procedure. That section authorizes the court to conform the pleadings to the facts proved where the amendment does not change substantially the claim or defense. The amendment in question allowed the interposition of an entirely new defense.

If the court possessed the power to allow such an amendment after the evidence xvas in, the impropriety of such an allowance is apparent. The proofs of death were not conclusive on plaintiff as to the age of assured. He could have shown the real age of deceased, and that the statement in the proofs in that regard was erroneous. Association v. Sturtevant, 78 Hun, 572, 29 N. Y. Supp. 529; McMaster v. Insurance Co., 55 N. Y. 222; Cummins v. Insurance Co., 67 N. Y. 261. But, while the evidence was being taken on the trial, plaintiff had not been called upon to offer any evidence on the question of the age of the insured. There was no issue in that regard. Hence, had plaintiff interposed an objection, the court below’, doubtless, would not have sanctioned the amendment in question.

But, having allowed thé amendment, we are of the opinion that the court should have also granted the defendant’s motion for judgment, on the ground that it appeared that there was a plain breach of warranty as to the age of the assured. In the application the assured represented and warranted that he was born on the 31st day of January, 1842; while the proofs of death show that he was born, in fact, on the 30th day of January, 1841. In other words, by .the proofs made and verified by plaintiff, and which he introduced in evidence on the trial, it was shown that in the application for insurance the assured, in answer to questions asked of him, had represented and warranted himself as one year younger than he really was. Such answers were warranties, and will be regarded as material to the risk. Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. 654; Boland v. Association, 74 Hun, 385, 26 N. Y. Supp. 433. Such being the case, and as it appeared by the proofs of death made by the plaintiff, and, as above stated, by him introduced in evidence, that the assured, in his application to the company, had misstated his age one vear, the court, we think, should have granted defendant’s motion.

While, as we have seen, the plaintiff was not estopped by the proofs from showing the true age of deceased, while he could have shown a mistake therein, in the absence of any explanation or other evidence the statement in the proofs as to the age of deceased should be deemed to establish the fact so stated. Daniels, J., in Kabok v. Insurance Co. (Sup.) 4 N. Y. Supp., at page 719, says:

“But the fact did appear by the statement of the plaintiff herself, which was verified on the 24th of August, 18SG, and made a part of the proof of death, that the person whose life was insured was born on the 10th of June, 1853, and no denial or explanation avoiding the effect of this admission was made upon the trial; and that did establish the fact to be that the statement contained in the application concerning the time of birth and the age of this person was untruthfully given.”

We concur in the view so stated by the learned justice as to the effect of a proof of death made by a plaintiff in such a case.

See, also, Neill v. Insurance Co., 42 N. Y. Super. Ct. 259; Association v. Sturtevant, 78 Hun, 572, 29 N. Y. Supp. 529; Parmelee v. Insurance Co., 54 N. Y. 193.

We therefore conclude that the judgment should be reversed, and a new trial granted; costs to abide the event. All concur.  