Archer v. Equitable Life Assurance Society of United States , 169 A.D. 43 ( 1916 )

Ingraham, P. J. (dissenting):

I do not think that section 58 of the Insurance Law (Consol. Laws, chap. 28; Laws of 1909, chap. 33) applies to a case where a contract of life insurance is sought to be avoided by the fraud of the person obtaining the contract. That section provides that every policy of insurance shall contain the entire contract between the parties; that nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application or other writings, unless the same are indorsed upon or attached to the policy when issued; and that all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties. It seems to me clear that the object of this section was to prevent a policy being avoided by reason of a warranty or condition not incorporated in the policy itself, and that it has no application to a case where the policy itself is sought to be avoided as having been obtained by fraud. This intent of the statute seems tobe emphasized by the language that “all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties.” Here the contract is sought to be avoided by a fraud, which avoids all contracts, and I can see no reason why a policy of insurance shall be an exception to the general rule. What was said in the Becker Case (153 App. Div. 382) applied to a case where the defendant sought to inject as a defense to an action to enforce a policy a misrepresentation or breach of warranty by the assured. But where the insurance company comes in and alleges that the contract was obtained by fraud, in which the defendant must prove false representations, scienter, and reliance thereon by the insurance company, I do not think this statute applies.

I think, therefore, the order should be reversed, and the motion for judgment denied.