Makel v. John Hancock Mutual Life Insurance

95 A.D. 241, 88 N.Y.S. 757

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1904
• Status: Published

Opinions

Hooker, J.:

■ The plaintiff had a recovery for the face of a policy of insurance issued by the defendant on the life of one Lena Makel. The contract of insurance provided in part as follows: The insurance company “ In consideration of the statements and agreements in the application herefor, which are hereby referred to, and as warranties made a part of this contract, and of the premium of fourteen cents * * * agrees to pay,” etc. The 12th question in the application for the insurance is: “For whose benefit is the insurance desired?” and is answered, “Edward Makel.” “Relationship to person proposed for insurance ? ” answered by the assured, “ Husband.” The following evidence given by the plaintiff, however, shows that he was not the husband of the assured': “Was Lena Makel your wife ? [Objected to, and objection sustained.] A. Tes, sir. Q. Were you married ? A. Not exactly married; I was living with her near two years. * * * Q. Well, did you live with Lena Makel, the person mentioned in this policy ? [Objected to; objection overruled.] By the witness:. Tes, sir.” The witness testified that she went by the nattie' of Lena Makel, and that they cohabited . together; that she was introduced as Mrs. Makel, and that he supported her and. she took care of the home. He said that the first place they lived together was at Bancroft place. “ Q. Did you have any conversation with her before you went to live with her in Bancroft Place? A. No. sir. * * * Q. When you went to live with her — when you first started in to live together, did you say anything to her and she say anything to you ?• [Objected to; objection overruled.] Q. Tell us what she said to you ? A. The first place I met her was in 105 Johnson Avenue; I was to her sister’s Mrs. Ruoff,-and she took a fancy to me and I took a fancy to her, and she said, how about if we go housekeeping ? Q. What else ? A. So I said, all right, and went to work and got furniture and we moved in 15 Bancroft Place. Q. Was that all the conversation you had with her ? A. Tes, sir.”

It is clear from this evidence that no contract of marriage ever existed between the assured and the plaintiff, civil or ceremonial. He was not her husband, and her warranty, contained in the application for the insurance to that effect, was false. ■ This breach of warranty was held in Gaines v. Fidelity & Casualty Co. (93 App. Div. 524; 87 N. Y. Supp. 821) to be sufficient to forfeit the policy. In that case we took occasion to examine the cases on this question at some length, and its further discussion here is unnecessary.

.. Upon the authority of that case, this judgment must be reversed.

Bartlett, J., concurred;. Jenks, J., in result in separate memorandum ; Hirsohberg, P. J., dissented.