Boylan v. Prudential Insurance

Daly, P. J.

In this case-two questions of fact arose upon the trial: (1) Was the application for the policy signed by,the insured, or was it the act of the company’s agent; and (2), was. there a false representation in.it touching thq health of the' deceased? As to the first question, there was. very satisfactory evidence that the agent of the insurance company not only filled up the blanks'in the application, but signed it in the- name of the insured, and that the insured made no declarations whatever, and did not know of any. The case is like Bernard v. United Life Ins. Assn., 17 Misc. Rep. 115; 39 N. Y. Supp. 356; 12 Misc. Rep. 10; 33 N. Y. Supp. 22, holding it to be within the. scope of the agent’s authority ,to fill up the blank, and that his declarations contained in it, .made without the knowledge of the insured, were to be deemed, the acts of the company, and estopped it from interposing, the falsity of the representations as a defense to the policy.

But, conceding that the application was the application of the insured and that the plaintiff is bound by it, the only proof of its falsity is contained in. the certificate of the physician, presented by the plaintiff among the proofs of death and put in evidence by her. This will constitute prima facie evidence binding upon the plaintiff as an admission (Hanna v. Connecticut Mut. Life Ins. Co., 150 N. Y. 526; Phillips v. New York Life Ins. Co., 31 N. Y. St. Repr. 636; 9 N. Y. Supp. 836; Howard v. Met. Life Ins. Co., 18 Misc. Rep. 74; 41 N. Y. Supp. 33; but evidence was admitted tending to contradict the physician’s certificate. The mother of the deceased testified, without objection, that her son was not ill at’the time the insurance was effected, but was in health. This tended to obviate the effect of the contrary admission in the proofs of death to change or correct the facts appearing to be so admitted and to raise an issue upon the' fact, and was sufficient to authorize a .finding not only that no admission was intended if the trial court saw fit to so find; but, also, that the fact was otherwise, than as appeared to be admitted by such proofs. Goldschmidt v. Ins. Co., 102 N. Y. 486; Howard v. Met. Life Ins. Co.; Hanna v. Conn. Mut. Life Ins. Co., above.

As the justice found for the plaintiff, we must assume that all the questions of fact were resolved by him in her favor. There was no proof of breach of warranty, except as appeared by the plaintiff’s admission in the offer of proofs of death containing the physician’s certificate, and as she testified in contradiction of it, the finding that there was no admission intended, and that the fact was not as stated in the certificate, will not be disturbed.

Judgment affirmed, with costs.

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs. .