Blackmar, P. J.:
The action is upon a policy of insurance for $25,000 upon the life of Leontine Klein, payable to the plaintiff corporation, of which she was president. The application, dated June 24, 1919, was signed by Mrs. Klein. The first premium was paid July 14, 1919, and the policy was dated and issued September 4, 1919. On November nineteenth following she was admitted to St. Mark’s Hospital, where, following an operation, she died on the 26th of November, 1919.
The answer, after some denials not material to the question before the court, set up two defenses: First, that the contract of insurance was issued and accepted on the condition that it should not take effect unless the first premium should be paid when the assured was in good health; that when the first premium was paid the assured was- not in good health, and that the company had tendered to the plaintiff the sum of $729.25 (being the amount of the first premium paid), and that the tender is kept good; second, that the policy was issued in consideration -of the declarations, made in the application, to the effect that the applicant was in sound condition mentally and physically; that she had never had any bodily or mental infirmity or deformity and that she had not been disabled nor had she received any medical or surgical atten[613]*613tion for five years prior to the date of her application, which declarations she warranted to be true; that said declarations were false in that when she made the application she was suffering from bodily infirmity and from a lack of sound physical condition, and that she had within five years been disabled and had received medical or surgical attention.
A bill of particulars was ordered of the defenses set forth in the answer, and the bill as served alleged that the respects wherein the assured’s representations were' false and the assured was not in good health were that she “ is said to have had chronic intestinal obstructions with disease causing adhesions.”
The evidence showed that Mrs. Klein was fifty-four years of age, and until a few days before entering the hospital had been engaged in active business. An interne in the hospital who had not been licensed to practice as a physician, but took the patient’s history, testified that Mrs. Klein stated that she had a falling of the womb and had had for thirty years a perineal tear extending to the rectum, which, however, had caused but little trouble until three years ago. The interne gave in his own words the substance of Mrs. Klein’s statement as follows: “ Three years ago patient began to notice a mass protruding from the vagina the size of a hazel nut, which gave no pain or discomfort, and no urinary or rectal symptoms. The condition has remained practically the same. Three weeks ago patient suddenly began to feel a sensation of pressure on bladder and rectum, also as if something was giving way in the pelvis. This caused a frequency in micturition and painful defecation. The symptoms were not very severe, but the patient felt that the time had at last arrived when an operation should be performed. Previous history: Marital, two children; no miscarriages. Gynecological history: Perineal tear 30 years ago, never repaired. * * * Personal: Excellent bowels, fine appetite. Urination: No nocturia or no polyuria.” He further testified that she told him that until about three weeks before she came to the hospital she felt perfect.
The operating surgeon, discovering a congenital abnormal condition of the intestines, which was puzzling to him and [614]*614such as he had never seen in twenty-six or twenty-seven years’ practice, passed beyond the minor operation for which she had come to the hospital and performed a serious major operation to correct or at least alter the condition, and the resulting shock caused her death.
The answer contains two defenses. Reversing their order for convenience of consideration, they are: (a) Breach of warranty, and (b) rescission on the ground that the assured was not in good health when the first premium was paid.
To establish the defense of breach of warranty in a fife insurance policy, two things must be proved: First, that the representations are false, and second, if false, that they are fraudulent. (Insurance Law, § 58.) Since the enactment of this section, or since January 1,1907, an immaterial representation cannot be a warranty, for fraud cannot be predicated upon an immaterial representation. (See Insurance Law [Gen. Laws, chap. 38; Laws of 1892, chap. 690], § 58, as added by Laws of 1906, chap. 326; now Insurance Law [Consol. Laws, chap. 28; Laws of 1909, chap. 33], § 58.) We, therefore, reach the conclusion that the representation must be material, that it must be false, and that it must be accompanied by a fraudulent intent, or it is not a warranty.
. The representations contained in the application for the policy in this case, namely, that the applicant was in sound condition mentally and physically, that she had never had any bodily or mental infirmity or deformity, and that she had not been disabled nor had she received any medical or surgical attention for five years prior to the date of the application, were, as matter of law, material. Whether they were false or not was at the very least a "question of fact. The representations were meant to describe the normal condition of an ordinary healthy person. They were intended to be the inducement for the issuance of a fife insurance policy and, therefore, to exclude a condition of disease, abnormality or disability which might affect or have some bearing upon the duration of life. A reasonable interpretation must be placed upon the representations in view of the purpose for which they were made. (Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Peacock v. New York Life Ins. Co., 20 id. 293; Schmitt v. Michigan Mutual Life Ins. Co., 101 App. Div. 12; [615]*615Packard v. Metropolitan Life Ins. Co., 72 N. H. 1; Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274.)
The bill of particulars limiting the answer alleged that the representations were false in that the assured is said to have had chronic intestinal obstruction, with disease causing adhesions. She went to the hospital for a minor operation to cure the effects of a laceration caused by child-birth thirty years previously, which, up to the time when the application for the policy was made, had no appreciable effect upon her comfort, well-being or general health. While there, apparently when she was under the influence of anaesthetics, the physician discovered an intestinal abnormality; but this condition had continued for fifty-four years, from her birth, without any indication that it interfered with proper functioning. One may depart from the normal physically and still be sound and have no infirmity, deformity or disease. The excuse for the major operation which resulted fatally was that one of the physicians present thought that the tissue looked malignant, but on subsequent examination it was found healthy and normal. Whether this condition was such as to render false her representations that she was in a sound condition mentally and physically, had never had any bodily or mental infirmity or deformity, and had not been disabled, was a question of fact when we take into consideration the purpose for which such representations were made, namely, to induce the issuance of a fife insurance policy. Certainly it cannot be said as matter of law that such representations were false.
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Blackmar, P. J.:
The action is upon a policy of insurance for $25,000 upon the life of Leontine Klein, payable to the plaintiff corporation, of which she was president. The application, dated June 24, 1919, was signed by Mrs. Klein. The first premium was paid July 14, 1919, and the policy was dated and issued September 4, 1919. On November nineteenth following she was admitted to St. Mark’s Hospital, where, following an operation, she died on the 26th of November, 1919.
The answer, after some denials not material to the question before the court, set up two defenses: First, that the contract of insurance was issued and accepted on the condition that it should not take effect unless the first premium should be paid when the assured was in good health; that when the first premium was paid the assured was- not in good health, and that the company had tendered to the plaintiff the sum of $729.25 (being the amount of the first premium paid), and that the tender is kept good; second, that the policy was issued in consideration -of the declarations, made in the application, to the effect that the applicant was in sound condition mentally and physically; that she had never had any bodily or mental infirmity or deformity and that she had not been disabled nor had she received any medical or surgical atten[613]*613tion for five years prior to the date of her application, which declarations she warranted to be true; that said declarations were false in that when she made the application she was suffering from bodily infirmity and from a lack of sound physical condition, and that she had within five years been disabled and had received medical or surgical attention.
A bill of particulars was ordered of the defenses set forth in the answer, and the bill as served alleged that the respects wherein the assured’s representations were' false and the assured was not in good health were that she “ is said to have had chronic intestinal obstructions with disease causing adhesions.”
The evidence showed that Mrs. Klein was fifty-four years of age, and until a few days before entering the hospital had been engaged in active business. An interne in the hospital who had not been licensed to practice as a physician, but took the patient’s history, testified that Mrs. Klein stated that she had a falling of the womb and had had for thirty years a perineal tear extending to the rectum, which, however, had caused but little trouble until three years ago. The interne gave in his own words the substance of Mrs. Klein’s statement as follows: “ Three years ago patient began to notice a mass protruding from the vagina the size of a hazel nut, which gave no pain or discomfort, and no urinary or rectal symptoms. The condition has remained practically the same. Three weeks ago patient suddenly began to feel a sensation of pressure on bladder and rectum, also as if something was giving way in the pelvis. This caused a frequency in micturition and painful defecation. The symptoms were not very severe, but the patient felt that the time had at last arrived when an operation should be performed. Previous history: Marital, two children; no miscarriages. Gynecological history: Perineal tear 30 years ago, never repaired. * * * Personal: Excellent bowels, fine appetite. Urination: No nocturia or no polyuria.” He further testified that she told him that until about three weeks before she came to the hospital she felt perfect.
The operating surgeon, discovering a congenital abnormal condition of the intestines, which was puzzling to him and [614]*614such as he had never seen in twenty-six or twenty-seven years’ practice, passed beyond the minor operation for which she had come to the hospital and performed a serious major operation to correct or at least alter the condition, and the resulting shock caused her death.
The answer contains two defenses. Reversing their order for convenience of consideration, they are: (a) Breach of warranty, and (b) rescission on the ground that the assured was not in good health when the first premium was paid.
To establish the defense of breach of warranty in a fife insurance policy, two things must be proved: First, that the representations are false, and second, if false, that they are fraudulent. (Insurance Law, § 58.) Since the enactment of this section, or since January 1,1907, an immaterial representation cannot be a warranty, for fraud cannot be predicated upon an immaterial representation. (See Insurance Law [Gen. Laws, chap. 38; Laws of 1892, chap. 690], § 58, as added by Laws of 1906, chap. 326; now Insurance Law [Consol. Laws, chap. 28; Laws of 1909, chap. 33], § 58.) We, therefore, reach the conclusion that the representation must be material, that it must be false, and that it must be accompanied by a fraudulent intent, or it is not a warranty.
. The representations contained in the application for the policy in this case, namely, that the applicant was in sound condition mentally and physically, that she had never had any bodily or mental infirmity or deformity, and that she had not been disabled nor had she received any medical or surgical attention for five years prior to the date of the application, were, as matter of law, material. Whether they were false or not was at the very least a "question of fact. The representations were meant to describe the normal condition of an ordinary healthy person. They were intended to be the inducement for the issuance of a fife insurance policy and, therefore, to exclude a condition of disease, abnormality or disability which might affect or have some bearing upon the duration of life. A reasonable interpretation must be placed upon the representations in view of the purpose for which they were made. (Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Peacock v. New York Life Ins. Co., 20 id. 293; Schmitt v. Michigan Mutual Life Ins. Co., 101 App. Div. 12; [615]*615Packard v. Metropolitan Life Ins. Co., 72 N. H. 1; Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274.)
The bill of particulars limiting the answer alleged that the representations were false in that the assured is said to have had chronic intestinal obstruction, with disease causing adhesions. She went to the hospital for a minor operation to cure the effects of a laceration caused by child-birth thirty years previously, which, up to the time when the application for the policy was made, had no appreciable effect upon her comfort, well-being or general health. While there, apparently when she was under the influence of anaesthetics, the physician discovered an intestinal abnormality; but this condition had continued for fifty-four years, from her birth, without any indication that it interfered with proper functioning. One may depart from the normal physically and still be sound and have no infirmity, deformity or disease. The excuse for the major operation which resulted fatally was that one of the physicians present thought that the tissue looked malignant, but on subsequent examination it was found healthy and normal. Whether this condition was such as to render false her representations that she was in a sound condition mentally and physically, had never had any bodily or mental infirmity or deformity, and had not been disabled, was a question of fact when we take into consideration the purpose for which such representations were made, namely, to induce the issuance of a fife insurance policy. Certainly it cannot be said as matter of law that such representations were false.
But even if they, were false, they were certainly not fraudulent. The condition was entirely unknown to the applicant; and a representation which is true to the best of the knowledge of the applicant is not fraudulent.
As to the three elements of warranty, it may be said that the representations were material as matter of law, that it was a question of fact whether they were false, and that as matter of law they were not fraudulent. The defense of warranty, therefore, fails and the court was not justified in dismissing the complaint on the ground of breach of warranty.
It is true that a false representation, even if not fraudulent, may be the basis of relief in equity. If such representation, [616]*616although innocently made, induced the defendant to enter into a contract which it otherwise would not have made, a court of equity may decree a rescission of the contract upon the defendant’s returning any benefit that it may have received. But no such defense appears in the answer; and if the defense had been set up, the question of the falsity of the representation would still have been a question of fact.
The other affirmative defense in the answer is that the delivery of the policy and the acceptance of the contract were conditioned upon the applicant’s being in good health when the first premium was paid, and that at such time the .applicant was not in good health. This defense also rests upon a question of fact, namely, whether the insured was in good health at the time the first premium was paid. The defendant had required certain representations to be made by the applicant before it would consent to issue its policy. Its policy was issued upon the strength of those representations and amounted to a concession on the part of the defendant that if those representations were true the assured was in good health. The clause prescribing as a condition to the validity of the policy, a state of good health at the time of the payment of the first premium, was meant to cover any substantial change between the date of the application and the payment of the first premium. If the representations as.to condition were true, and if the same condition had continued to the time of the. payment of the first premium, it necessarily follows that, for the purpose of giving validity to the policy, the assured was in good health at that time. The application established the standard of good health for the purpose of issuing the policy, and the phrase “ good health,” contained in' this clause of the policy, has reference to the representations made in the policy.
The best reflection that I can' bring to bear on this subject leads to the conclusion that if the representations were false and the assured was not in good health when the first premium was paid, the defense was established, but their falsity was a question of fact for the jury, and it necessarily follows that the court could not dismiss the plaintiff’s complaint by ruling as matter of law that the assured was not in good health when the first premium was paid.
[617]*617I have considered this case with the view that the defendant is bound by its bill of particulars and that the falsity of the representations could be predicated only upon the intestinal condition of the assured; but I think that if the issue were broader and the inquiry was whether the perineal tear or the lacerations due to child-birth were evidence of the falsity of the representations, the same conclusion must be reached, namely, that a question of fact was presented for the jury, and that it was error to dismiss the complaint.
It seems clear on the record that the plaintiff’s counsel did not intend to submit the decision of this question of fact to the court, and it is equally clear that the court did not intend to decide any question of fact. The court should not be astute or eager to find in the record a waiver of a jury trial and the submission of a question of fact to the trial court. The trial is conducted under the pressure of time, and the occasion, and it would be unjust to hold that the parties intended to forego the benefit of a verdict of a jury unless the intent so plainly appears as not to admit of argument. We find in the record at the close of the evidence a long colloquy in which both counsel and the court took part. The burden of the argument of plaintiff’s counsel was that there was a question of fact which should be submitted to the jury. It is true that at one time during the discussion he requested the direction of a verdict, and it is also true that after the court had announced its decision to dismiss the complaint, no express request was made to submit any question to the jury; but the plaintiff was disarmed by the remarks made by the court itself. Near the enfd of the long discussion the court said: “ I really exercised my ingenuity to find some question of fact that I might appropriately leave to the jury, and after a consideration of the decisions I could not satisfy myself that there was a single fact I could leave to them. I have to take the burden of it myself.” This is a plain expression that the court was deciding this case as a matter of law, and after such expression it would have been idle to request the submission of any fact to the jury. Nevertheless, plaintiff’s counsel immediately said: “ Assuming that they are material, as to the question of whether they were true or not, is a question of fact in the case to be submitted to the [618]*618jury,” showing that plaintiff’s counsel did not intend to waivé the jury and submit this question of fact to the court.
The judgment and order should be reversed and a new trial granted, with costs to abide the event.
Mills, Rich, Jaycox and Manning, JJ., concur.
Judgment and order reversed and a new trial granted, with costs to abide the event.