138 N.Y.S. 491 | N.Y. App. Div. | 1912
This action is brought upon a life insurance policy. The issuing of the policy payable to ■ plaintiff, the death of the insured, and the service of proofs of death are admitted. By its amended answer defendant alleged that the policy was issued in reliance upon a written application therefor, which was made a part thereof, and also upon a medical examination of plaintiff’s testator, made by a physician on behalf of defendant; that in said written application he willfully made false and • fraudulent statements as to his previous and future occupation, as to his then and previous condition of health and habits, and that at said medical examination he made statements as to these and other matters. Defendant then alleged the falsity of some of the statements contained in said application, and of others contained in said medical examination,
Plaintiff moved to strike from the amended answer the allegations respecting the false and fraudulent1 character of any statements or representations contained in the medical examination, which motion was granted. The action was then brought to trial upon the pleadings as reformed by the order of the court, and resulted in a verdict for plaintiff. Thereafter defendant appealed from the order granting the. motion striking out portions of its answer, and subsequently appealed from the judgment, specifying in this notice of appeal that it would bring up for review the. order referred to. No contention is made that upon the pleadings as they stood when the base was'tried, any error was committed in the course of the trial, or that the verdict is against the weight of the evidence. Two questions'only are presented: First. Did defendant waive its right to appeal from, said order by proceeding to trial with-, out, so far as the record discloses, any objection to the determination of the issues upon the pleadings as they then stood; and, second, if not, was the order striking out portions of defendant’s answer properly made ?
We think that the first question must be answered in the negative. (Stokes v. Stokes, 81 Hun, 152.) If the order may not be reviewed under-the notice of appeal from the judgment (Code Civ. Proc. § 1316) it certainly may be under the direct appeal therefrom. (Raff v. Koster, Bial & Co., 38 App. Div. 336; Gleason v. Northwestern Mut. Life Ins. Co., 113 id. 186.)
We think that the second question must be answered in the affirmative. Fraud vitiates any contract, and if proved, constitutes a good defense to an. action based thereon. But to constitute fraud growing out of representations, such representations must not only have been knowingly false, but in addition they must have been material, and relied upon as an inducement to the making of the contract. (20 Cyc. 39; Brackett v. Griswold 112 N. Y. 454; Powell v. Linde Co., 58 App.
We think that the order striking out the defenses based upon the alleged misstatements in connection with the 'medical examination was properly made. The order striking out these defenses must be affirmed, with ten dollars costs and disbursements, and the judgment and the order denying the motion for a new trial must also be affirmed, with costs.
Jenks, P. J., Hirschberg, Thomas and Carr, JJ., concurred.
Judgment and order affirmed, with costs; order striking out defenses affirmed, with ten dollars costs and disbursements.