2 N.Y.S. 79 | N.Y. Sup. Ct. | 1888
The application for the certificate was made by Charles Stephan, October 10, 1883, and he died December 27, 1883. Upon the trial much testimony was given on the part of the defendant tending to show that several of the answers made by the insured in his application and upon his medical examination were not “fully and truly” answered. According to the terms of the contract, these answers were warranties; and, if not fully and truly made, the contract was, by its own terms, void. Such was the agreement of the parties to it,—an agreement which it is hardly necessary to say it was entirely competent for the parties to make, and which the court cannot unmake, but must accept as made, and enforce. Foot v. Insurance Co., 61 N. Y. 571; Cushman v. Insurance Co., 63 N. Y. 404; Baker v. Insurance Co., 64 N. Y. 648; Edington v. Insurance Co., 77 N. Y. 564, 100 N. Y. 536, 3 N. E. Rep. 315; Bryce v. Insurance Co., 55 N. Y. 240; Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. Rep. 654. In the application
The defendant urges that the plaintiff has no title to the certificate or to the claim against the defendant, if any valid claim exists. The eighteenth sec
As there must be a new trial for the reasons first assigned, we do not deem it needful to examine the other grounds of error alleged, since, upon a new trial, they may not arise. The judgment should be reversed; a new trial granted; costs to abide the event.
Learned, P. J., concurs. Ingalls, J., not sitting.