In 1923 Minniе A. Bradbrook applied to plaintiff for, and there was issued to her by plaintiff, a policy of insurance on her life, payable to her husband, George E. Brad-brook, in the face amount of $25,000. The written application *225 signed by Mrs. Bradbrook stated that she hаd been born in 1877, and that she was forty-six years old at the time she applied. Her application contained language assuring plaintiff that all the answers therein were true and that she understood that plaintiff would believe them to be true and act upon them. So acting, plaintiff wrote the policy at the premium rate appropriate to the age declared in thе application. The policy contained a provision, required by section 155, Insurance Law, to be inserted therein, that: “ if the age of the insured has been misstated, the amount payable hereunder shall be such as the premium paid would have рurchased at the correct age ”.
Mrs. Bradbrook died on March 29, 1940, and a week later, on receipt of proofs оf loss in due form, plaintiff paid to her husband the sum of $25,000 less the amount of a policy loan. In June, 1941, the insurance company brought this suit, аgainst the husband, alleging in the complaint that Mrs. Bradbrook, when the policy was written in 1923 was not forty-six, as she had then reported, but sixty-two yеars old. It is not disputed that, for the premium paid, the amount of insurance available in 1923 to an applicant sixty-two years old would have been $15,077, instead of $25,000, and it is for the difference between those two amounts that plaintiff sues. (The husband died after suit was сommenced, and his executors are now defendants-respondents.) Plaintiff specifically grounded its action on fraud. It alleged fraud, it went forward with evidence directed toward proving fraud, and it was on its request that the Trial Justice, without objection by defendants, submitted to the jury the issue of fact as to whether or not Mrs. Bradbrook had been guilty of fraudulently misstating her age. The jury found for plaintiff. The Appellate Division reversed on the law and facts, the majority of the justices being of the opinion that the evidencе, taken most favorably to plaintiff, proved no more than “ a misstatement of age by the insured ” and that “ no fraud on her (insured’s) part in the procuring of the contract was established.” We do not so read the record. The jury had before it the testimony of Mrs. Brаdbrook’s daughter and of her niece that she was actually sixteen years older than she represented herself in the aрplication to be. Besides, plaintiff produced on the trial six different documents signed by Mrs. Bradbrook at various times between 1888 and 1900, in each of which she
*226
had sworn that her year of birth-was 1861, not 1877. On that showing the jury had the right to say, as it did say by its verdict, that the applicant had given a wrong answer as to her .age, that the untruth had been uttered knowingly and with intent that it be relied upon, and that it had in fact been rеlied upon. The insurer did not, by paying the face amount of the policy before it discovered the deception, waivе its right thereafter to sue for a return of the overpayment. (See
Mutual Life Ins. Co. of New York
v.
Wager,
Defendants, pointing out that more than seventeen years elapsed between the issuance of the policy and the bringing of this suit, argue that plaintiff’s claim of fraud is barred by the
“
incontestability clausе ” in the policy. That clause, which, like the misstatement of age clause above discussed, is mandatory in New York (Insurance Law, § 155), says that the policy “ shall be incontestable after two years from its date of issue except for non-payment of premium.” This court seems never to have decided whether or not such an incontestability clause operates to' prеvent the enforcement, after two years, of an “ age adjustment ” or
“
misstatement of age ” provision found with it in the same life insurance policy. Other courts in this State (see, for instance,
Murphy
v.
Travelers’ Insurance Co.,
134 Misc.
238; Grenis
v.
Prudential Insurance Co.,
The judgments should be reversed and a new trial granted, with costs to the appellant to abide the event.
• Lehman, Oh. J., Loughban, Lewis, Conway, Thacheb and Dye, JJ., concur.
Judgments reversed, etc.