21 N.Y.S. 191 | N.Y. Sup. Ct. | 1892
The plaintiff in this action is the beneficiary named in a policy of life insurance issued by the defendant for $3,000 upon the life of her husband, John D. Tuthill, now deceased. During the lifetime of the assured he had failed to pay an assessment, which became due and payable to the defendant by the terms of the policy on the 29th day of May, 1890. By other terms of the policy it lapsed and became void, in consequence of the failure to pay such assessment. To induce the defendant to renew the policy, the assured made and delivered to the defendant a certificate in writing, in which he declared, among other things, that he had had no sickness of any kind since his original application for insurance. Thereupon the defendant accepted the overdue premium, and reinstated the policy. This is an action upon the policy, and the defendant sets up the falsity of the statement made by the assured to procure the acceptance of the overdue premium and renew the policy. The cause was tried at the circuit, and a verdict rendered in favor of the plaintiff, and from the judgment entered upon that verdict, and the order denying the motion for a new trial upon the minutes of the court," the defendant has appealed.
The assured died in September, 1891, and in the proofs of death the plaintiff and the physician both stated that the health of the deceased was first affected in March, 1890. That, statement was erroneous. It should have been March, 1891. According to the testimony of one of the witnesses for the plaintiff, the attention of one of the general officers of the company was called to the mistake, and he said it was all right, and claims such as this were not questioned. Upon the trial the plaintiff ■was permitted to prove the mistake, and how it happened, and from .such proof it appeared that the sickness commenced in March, 1891. The admission of that testimony is now assigned for error, upon the ground that the statements in the proofs of death were in the nature of admissions, and conclusive against the plaintiff in this action. We cannot yield assent to such contention. The right of the plaintiff to a recovery upon the policy in question depended upon the truth of the certificate made by the deceased to procure its renewal, after it had lapsed for nonpayment of premiums, and the proofs of death contradicted that certificate. If they were correct, and the deceased was sick in March, 1890, then his certificate made in May, 1890, was false.