Ward, J.:
The complaint in this action is based upon a life insurance policy issued by the defendant to William Robertson, of the city of Auburn, whereby his life was insured in the sum of $500, and upon his death the plaintiff claimed to be the beneficiary under said j>olicy and entitled to recover that amount. The complaint referred to the application upon which the policy was issued and contains this statement: “That in the application for said insurance by said Robertson, which was in writing, Ida J. Breeze, this plaintiff, was named by said insured, William Robertson,' as the beneficiary to whom said insurance should be payable upon the death of said insured, and it was consented to and agreed by the defendant that said plaintiff, Ida J. Breeze, should be the beneficiary and entitled to said insurance upon death of said insured, William Robertson.”
The application was forwarded to the office of the defendant, and was retained by it until the trial, when it was produced, and when produced, the plaintiff’s attorney for the first time discovered that the plaintiff was not named as beneficiary therein, but it there appeared as follows : “ No. 13, Name, etc., of beneficiary, subject to provisions of policy applied for as to payment. To his estate.”
The policy provided that the company “ may pay this policy to. either the. executor or administrator, husband or wife, or any relative by blood, or lawful beneficiary of the insured.”
The application contained the statement that “ the undersigned hereby declares and warrants that the representations and answers [379]*379made above and on the other side of this sheet are strictly correct and wholly true. That they shall form the basis and become a part of the contract of insurance (if one be issued). That any untrue answers will render the policy null and void, and that said contract shall not be binding upon the company unless upon its date and delivery the insured be alive and in sound health.”
In answer to the 9th question in the application, “ Is said life now in sound health ?” the answer was “ Yes.”
In answer to the question, “Age, next birthday?” the answer was “ Fifty-nine years.”
The policy contained the provision that, in consideration of the answers and statements contained in the printed and written application for the policy, “ all of which are hereby made warranties and are hereby made part of this contract,” and of the payment, etc., the policy was issued.
Upon the trial the plaintiff proved, over the defendant’s objection and exception, that, when the application was signed by the insured, the name of the plaintiff was inserted as beneficiary therein. The defendant’s agent also testified to the same effect. Aside from the face of the paper, there was hut slight proof that this was not so, and there was evidence sufficient to go to the jury upon the question whether the plaintiff’s name was so inserted.
The learned counsel for the defendant seriously urges that the reception of this evidence was error; that the plaintiff, having produced the application upon the trial and counted upon it in the complaint, could not prove by paroi the name of any other beneficiary than that which appeared in the application, and that the name of the beneficiary contained in the application (the estate of the insured) prohibited a recovery in the action by the plaintiff.
The complaint was not amended. Had it counted upon tl application as it appeared, when produced upon the trial, some force could be attached to this argument, but the plaintiff did not have the possession of this paper, nor was she entitled to its possession, until it had been produced upon the trial through the machinery of the law. It was not the plaintiff’s paper, and she might count uj)on it as she understood it to be; and if a different paper was produced upon the trial by the defendant, who had the custody of it, she had the right to prove (if such were the fact) that, when the paper left [380]*380the custody of the insured upon its execution by him, it contained the precise provision alleged in the complaint. This is not seeking to prove the contents of a written instrument by paroi. It is simply to prove by paroi what the instrument really was.
Nor is it an attempt to reform an instrument or change what its real terms were. It is simply proving the fraud against the plaintiff in the unauthorized alteration of the instrument. Therefore, this contention of the defendant cannot be sustained. (Martin v. Tradesmen’s Ins. Co., 101 N. Y. 498, 503.)
The learned trial judge charged the jury as follows: “ An insurance company has a right, in making its contracts, to stipulate that representations in respect to age shall be correct and truthful, and if the assured should misrepresent so material a matter as his age, you can readily see how it would affect, not only the rights of the company, but the interests of all its members, particularly if it is a mutual insurance company. * * * It appears that the assured stated in this application that his age was fifty-nine years, or thereabouts. Now, it is claimed on the part of the defendant company and it has introduced evidence tending to show that he was a much older man than that; just how much older does not exactly appear, but that he must have been considerably older. If you are satisfied from all the evidence that the assured was materially older than he represented himself to be in the application, that would be such a breach of the warranty as would prevent a recovery on the part of the plaintiff; or, if he represented himself to be a sound and healthy man, when, in fact, he was of unsound health, and to such an extent that he must have realized it, then that would be such a warranty that a breach of it would, for itself, be a good defense to this action.”
At the close of the charge, the counsel for the defendant requested the court to charge that, if the jury should find that the assured misrepresented any statement as to his age in the application, the plaintiff could not recover. This the court declined, “ except as charged.” No exception was taken to this ruling. The counsel also requested the court to charge that if any material misrepresentation of fact were made in the application for insurance, even if the assured had no knowledge that the same was false, the plaintiff could not recover. The court declined to vary the charge [381]*381in that regard and the defendant excepted. The counsel also requested the court “to charge that, if the jury should find that the insured was not in sound health at the time of the making of the application, the plaintiff could not recover.” This the court declined, and the defendant excepted.
The court subsequently said : “ I charge that the application is a part of the contract, and also that all representations made by the insured in respect to age and health and to his last physician are warranties.”
The defendant’s counsel makes the point that it was incorrect for the court to charge that the assured must be materially older than the age specified in the application in order to constitute a breach of warranty as to age.
The court doubtless made this statement in consequence of its supposition that the statement in the application was that the age of the insured was fifty-nine or thereabouts.
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Ward, J.:
The complaint in this action is based upon a life insurance policy issued by the defendant to William Robertson, of the city of Auburn, whereby his life was insured in the sum of $500, and upon his death the plaintiff claimed to be the beneficiary under said j>olicy and entitled to recover that amount. The complaint referred to the application upon which the policy was issued and contains this statement: “That in the application for said insurance by said Robertson, which was in writing, Ida J. Breeze, this plaintiff, was named by said insured, William Robertson,' as the beneficiary to whom said insurance should be payable upon the death of said insured, and it was consented to and agreed by the defendant that said plaintiff, Ida J. Breeze, should be the beneficiary and entitled to said insurance upon death of said insured, William Robertson.”
The application was forwarded to the office of the defendant, and was retained by it until the trial, when it was produced, and when produced, the plaintiff’s attorney for the first time discovered that the plaintiff was not named as beneficiary therein, but it there appeared as follows : “ No. 13, Name, etc., of beneficiary, subject to provisions of policy applied for as to payment. To his estate.”
The policy provided that the company “ may pay this policy to. either the. executor or administrator, husband or wife, or any relative by blood, or lawful beneficiary of the insured.”
The application contained the statement that “ the undersigned hereby declares and warrants that the representations and answers [379]*379made above and on the other side of this sheet are strictly correct and wholly true. That they shall form the basis and become a part of the contract of insurance (if one be issued). That any untrue answers will render the policy null and void, and that said contract shall not be binding upon the company unless upon its date and delivery the insured be alive and in sound health.”
In answer to the 9th question in the application, “ Is said life now in sound health ?” the answer was “ Yes.”
In answer to the question, “Age, next birthday?” the answer was “ Fifty-nine years.”
The policy contained the provision that, in consideration of the answers and statements contained in the printed and written application for the policy, “ all of which are hereby made warranties and are hereby made part of this contract,” and of the payment, etc., the policy was issued.
Upon the trial the plaintiff proved, over the defendant’s objection and exception, that, when the application was signed by the insured, the name of the plaintiff was inserted as beneficiary therein. The defendant’s agent also testified to the same effect. Aside from the face of the paper, there was hut slight proof that this was not so, and there was evidence sufficient to go to the jury upon the question whether the plaintiff’s name was so inserted.
The learned counsel for the defendant seriously urges that the reception of this evidence was error; that the plaintiff, having produced the application upon the trial and counted upon it in the complaint, could not prove by paroi the name of any other beneficiary than that which appeared in the application, and that the name of the beneficiary contained in the application (the estate of the insured) prohibited a recovery in the action by the plaintiff.
The complaint was not amended. Had it counted upon tl application as it appeared, when produced upon the trial, some force could be attached to this argument, but the plaintiff did not have the possession of this paper, nor was she entitled to its possession, until it had been produced upon the trial through the machinery of the law. It was not the plaintiff’s paper, and she might count uj)on it as she understood it to be; and if a different paper was produced upon the trial by the defendant, who had the custody of it, she had the right to prove (if such were the fact) that, when the paper left [380]*380the custody of the insured upon its execution by him, it contained the precise provision alleged in the complaint. This is not seeking to prove the contents of a written instrument by paroi. It is simply to prove by paroi what the instrument really was.
Nor is it an attempt to reform an instrument or change what its real terms were. It is simply proving the fraud against the plaintiff in the unauthorized alteration of the instrument. Therefore, this contention of the defendant cannot be sustained. (Martin v. Tradesmen’s Ins. Co., 101 N. Y. 498, 503.)
The learned trial judge charged the jury as follows: “ An insurance company has a right, in making its contracts, to stipulate that representations in respect to age shall be correct and truthful, and if the assured should misrepresent so material a matter as his age, you can readily see how it would affect, not only the rights of the company, but the interests of all its members, particularly if it is a mutual insurance company. * * * It appears that the assured stated in this application that his age was fifty-nine years, or thereabouts. Now, it is claimed on the part of the defendant company and it has introduced evidence tending to show that he was a much older man than that; just how much older does not exactly appear, but that he must have been considerably older. If you are satisfied from all the evidence that the assured was materially older than he represented himself to be in the application, that would be such a breach of the warranty as would prevent a recovery on the part of the plaintiff; or, if he represented himself to be a sound and healthy man, when, in fact, he was of unsound health, and to such an extent that he must have realized it, then that would be such a warranty that a breach of it would, for itself, be a good defense to this action.”
At the close of the charge, the counsel for the defendant requested the court to charge that, if the jury should find that the assured misrepresented any statement as to his age in the application, the plaintiff could not recover. This the court declined, “ except as charged.” No exception was taken to this ruling. The counsel also requested the court to charge that if any material misrepresentation of fact were made in the application for insurance, even if the assured had no knowledge that the same was false, the plaintiff could not recover. The court declined to vary the charge [381]*381in that regard and the defendant excepted. The counsel also requested the court “to charge that, if the jury should find that the insured was not in sound health at the time of the making of the application, the plaintiff could not recover.” This the court declined, and the defendant excepted.
The court subsequently said : “ I charge that the application is a part of the contract, and also that all representations made by the insured in respect to age and health and to his last physician are warranties.”
The defendant’s counsel makes the point that it was incorrect for the court to charge that the assured must be materially older than the age specified in the application in order to constitute a breach of warranty as to age.
The court doubtless made this statement in consequence of its supposition that the statement in the application was that the age of the insured was fifty-nine or thereabouts. But it will be seen on turning to the answer, as above set forth, that the answer was “ next birthday, fifty-nine years.” That fixed a definite time, and had the defendant’s counsel called the court’s attention after the incorrect statement of the answer by the court in his charge, to the true answer, and then excepted to the refusal to charge, much point would have been given to the exception; as it is, we pass this point without further consideration.
We now reach a fatal exception. The warranty of the assured was that he was of sound health at the time of making the application, and the court refused to charge that this must be so, and we, therefore, turn to the statement in his charge upon that subject, which was : “ If he represented himself to be a sound and healthy man, when * * * he was of unsound health, and to such an extent that he must have realized it, then that would be such a warranty,” etc.
Under this charge, although the assured might have been seriously and fatally diseased so that his life was terminated thereby in a short time after the policy was issued, if the disease at the time of the application had not so far advanced that the assured was conscious of it, or, in the language of the court, “ realized it,” the beneficiary could recover. This view is obnoxious to the spirit and purpose of the contract.
[382]*382The insurance was upon the life of the assured. The warranty was required that the assured was in sound health, so that he was likely to live for such a length of time as would make it equitable and just that the defendant should insure that life for reasonable premiums.
If the statement as to health was simply a representation, and the defense was that that representation was fraudulent, the charge of the learned trial judge might be sustained, but the statement being a warranty, and made so by the contract itself, the fact that the insured may not have realized it did not constitute an answer to the breach of warranty in this regard alleged in defendant’s answer. (Elliot v. Mutual Benefit Life Association, 27 N. Y. Supp. 698; Foot v. AEtna Life Ins. Co., 61 N. Y. 576; Bernard v. United Life Ins. Assn., 28 N. Y. Supp. 756.)
The learned counsel for the respondent cites Grattan v. Metropolitan Life Ins. Co. (92 N. Y. 274) as sustaining the charge of the trial judge in the respect we are considering.
That was a case where the statement contained in the "application for a policy of life insurance was that a third person was in good health, and the court held that that statement did hot mean an actual freedom from illness or disease, but simply that the person had indicated in his actions and appearance no symptoms or traces of disease, and to the ordinary observation of a relative or friend was, in truth, well. The remarks of Judge Finch in the opinion as to the test in such cases must be understood with reference to the case before him.
The insurance company understood that the statement was not made by the person whose health was in question, but by another person, whose judgment or statement as to that health was founded upon the observation of such other person, and the contract was to be construed with reference to that situation. And Judge Finch says, at page 280: “ One who is not a doctor and speaks, not of himself, but of a third person, necessarily gives rather an opinion founded on observed facts than an absolute and accurate fact when he describes the health of such person as good.”
We have carefully examined the case cited and find it so dissimilar from the case at bar that it affords us but little aid in disposing of the exception last considered.
[383]*383Other exceptions are pressed upon our consideration by the learned counsel for the defendant, but we do not deem it necessary to review them here.
The judgment and order appealed from should be reversed and a new trial granted, with costs to abide event.
All concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide the event.