158 N.Y.S. 1018 | N.Y. App. Term. | 1916
The plaintiff has recovered a judgment upon a policy of insurance in the sum of $500 issued by the defendant upon the life of Isaac Levitt. The policy contains a clause that “ if the age of the Insured has been misstated the amount payable hereunder shall be such as the premium paid would have purchased at the correct age.” The policy also contains on its face the words “ Ordinary Life Intermediate Class. Age 60. Amount $500. 1/12 Annual Premium $3.13.” It appeared at the trial practically without dispute that the insured was sixty-six years old at the time the policy was issued; that in his application his age was stated as sixty; that the premium paid would have purchased a policy for only $370.85 if the age had been correctly stated. The defendant admits liability for, and has paid into court, this amount less the unpaid premium for the last year, The trial justice has given
The policy recites that it is issued “ In consideration of the application for this policy, copy of which application is attached hereto and made part hereof.” It also provides that “ this policy and the application therefor constitutes the entire contract between the parties. * * * All statements made by the insured shall, in the absence of fraud be deemed representations and not warranties and no such statement shall avoid this policy or be used in defense of a claim hereunder unless it is contained in the written application therefor and a copy of such application is securely attached to this Policy when issued.” These clauses of the contract must be read in connection with section 58 of the Insurance Law and are, I think, practically a stipulation by the parties fixing their rights in the same manner as in any event and without express stipulation they would be fixed'by law. I do not think, however, that they can be given the effect contended for by the plaintiff and that they prevent the court from considering the statement of the insured as to his age though the application was not physically attached to their policy.
There can be no doubt that the insured did make a misstatement as to his age and there can be no doubt that the amount of the policy was determined upon that statement. The parties have expressly stipulated however, that in spite of the fact that the policy states on its face that it is for $500, yet if the age of the insured has been misstated, the amount payable shall be such as the premium would have purchased at the
Pendleton and Whitaker, JJ., concur.
Judgment modified, and, as so modified, affirmed, with twenty-five dollars costs to appellant.