RUMSEY, J.
In the latter part of December, 1893, John A. Will, the husband of the plaintiff, made an application to an agent of the defendant for a policy of insurance for $5,000 on his life. He was. examined on the 31st day of December, by Dr. Foster, who was employed by the defendant’s agent as medical examiner, and a policy was written by the defendant, dated on the 6th day of January, 1894. Mr. Will died in March, 1894, and after proofs of loss had been made as required by the policy, and the defendant had refused to pay, this action was brought to recover the amount which was claimed to be due upon it. The single question presented at the-trial was whether, in fact, there had been such a delivery of the policy as made it a valid and existing instrument, upon which the defendant was bound. It was alleged by the plaintiff that an agree[746] ment had been made between Haynes, the agent of the defendant, and Will, the assured, by which the payment of the premium had been waived, and that the policy was absolutely delivered without payment of the premium early in January, 1894. It was claimed by the defendant, on the other hand, that there never had been an absolute delivery of the policy, but that it was delivered to Will, and received by.him, solely for purposes>of examination, and that it never became ah actual existing policy upon which the defendant was bound. This was the question upon which the parties went to trial. The defendant, at every stage of the case when it was proper to do so, claimed that the policy had never been effectually delivered, and took such exceptions to the ruling of the court upon that* subject as were necessary to enable him to raise the question here. The question, however, was submitted to the jury by the court, as a question of fact, and the finding was for the plaintiff. In submitting this question to the jury as a question of fact, we think the court erred, because the undisputed facts showed that the policy was delivered conditionally, and there was nothing from which the jury could infer that that delivery ever became absolute.
The plaintiff, in the first instance, put upon the stand Dr. Foster, who had examined' Will in behalf of the company, and who, it appeared, had also made many other examinations for the defendant upon the employment of the same agent who wrote this policy. By thus putting Dr. Foster upon the stand, the plaintiff certified him to the jury as a credible witness, whose testimony was to be relied upon so far as it was not contradicted. Becker v. Koch, 104 N. Y. 394, 401, 10 N. E. 701; Whart. Ev. § 549. She was at liberty to contradict his testimony, or to show that the facts were other than as he stated them to be; but, unless she did that, she was not at liberty to say that a fact stated by him which was not contradicted by anybody should not be assumed as an existing fact for the purposes of the case.
The time when the policy was delivered was disputed. Mrs. Bey, the plaintiff, testified that it was in the early part of January, 1894. The precise day she did not attempt to give, but she was positive that it was in the early part of January. Other witnesses sworn by the plaintiff testified that they saw this policy in the possession of Will before his death, and, while one or two of them thought that they saw it in the month of January, none of them were able to testify to the exact time. Their evidence therefore does not aid us in ascertaining just when the policy was delivered; but it must be assumed that it was done some time in January, 1894, and in the early part of that month.
When Dr. Foster was upon the stand', there was presented to him a paper purporting to be signed by Will, and dated on the 12th day of February, 1894. That paper read as follows:
“Received from A. O. Haynes, manager, policy No. 677,804, for $5,000, on my life, in the Equitable Assurance Society. Said policy held for examination, and not in force, as no premium has been paid.
“[Signed] J. A. Will.
“Witness: George V. Foster.
“February 12th, 1894.”
[747] Dr. Foster testified positively that he saw Mr. Will sign that paper at its date, and that at the same time he signed it as witness, and put the date upon it. It was not disputed that the signature was in the handwriting of Will. Mrs. Rey, who was subsequently put upon the stand, did not attempt to dispute that fact, and it is evident from an inspection of the original papers in the case that the handwriting upon the receipt is the same as the handwriting of the signature to the application. It must be assumed, therefore, for the purposes of the case, that this paper, signed by Will, was actually delivered to the defendant. There is some uncertainty or dispute as to whether it was delivered at the time when the policy was delivered. Mrs. Rey testified that the policy was delivered to her husband, Will, by Dr. Foster. This, Dr. Foster denied. He said positively that he never had the policy in his possession at any time, and that he did not deliver it to Will. Haynes, the agent, testified, as did Foster also, that the policy was delivered to Will by Haynes on the day of the date of the receipt, and that the receipt was given to Haynes at the same time. Mrs. Rey was asked whether any receipt was given at the time the policy was delivered to her husband, and she was able to say that she saw nothing of the sort. Evidently that was all that she could say, in the nature of things. But it may be assumed that the receipt was not delivered at the time that the policy was received by Will, but that Will delivered it subsequently, to the defendant’s agent.
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RUMSEY, J.
In the latter part of December, 1893, John A. Will, the husband of the plaintiff, made an application to an agent of the defendant for a policy of insurance for $5,000 on his life. He was. examined on the 31st day of December, by Dr. Foster, who was employed by the defendant’s agent as medical examiner, and a policy was written by the defendant, dated on the 6th day of January, 1894. Mr. Will died in March, 1894, and after proofs of loss had been made as required by the policy, and the defendant had refused to pay, this action was brought to recover the amount which was claimed to be due upon it. The single question presented at the-trial was whether, in fact, there had been such a delivery of the policy as made it a valid and existing instrument, upon which the defendant was bound. It was alleged by the plaintiff that an agree[746] ment had been made between Haynes, the agent of the defendant, and Will, the assured, by which the payment of the premium had been waived, and that the policy was absolutely delivered without payment of the premium early in January, 1894. It was claimed by the defendant, on the other hand, that there never had been an absolute delivery of the policy, but that it was delivered to Will, and received by.him, solely for purposes>of examination, and that it never became ah actual existing policy upon which the defendant was bound. This was the question upon which the parties went to trial. The defendant, at every stage of the case when it was proper to do so, claimed that the policy had never been effectually delivered, and took such exceptions to the ruling of the court upon that* subject as were necessary to enable him to raise the question here. The question, however, was submitted to the jury by the court, as a question of fact, and the finding was for the plaintiff. In submitting this question to the jury as a question of fact, we think the court erred, because the undisputed facts showed that the policy was delivered conditionally, and there was nothing from which the jury could infer that that delivery ever became absolute.
The plaintiff, in the first instance, put upon the stand Dr. Foster, who had examined' Will in behalf of the company, and who, it appeared, had also made many other examinations for the defendant upon the employment of the same agent who wrote this policy. By thus putting Dr. Foster upon the stand, the plaintiff certified him to the jury as a credible witness, whose testimony was to be relied upon so far as it was not contradicted. Becker v. Koch, 104 N. Y. 394, 401, 10 N. E. 701; Whart. Ev. § 549. She was at liberty to contradict his testimony, or to show that the facts were other than as he stated them to be; but, unless she did that, she was not at liberty to say that a fact stated by him which was not contradicted by anybody should not be assumed as an existing fact for the purposes of the case.
The time when the policy was delivered was disputed. Mrs. Bey, the plaintiff, testified that it was in the early part of January, 1894. The precise day she did not attempt to give, but she was positive that it was in the early part of January. Other witnesses sworn by the plaintiff testified that they saw this policy in the possession of Will before his death, and, while one or two of them thought that they saw it in the month of January, none of them were able to testify to the exact time. Their evidence therefore does not aid us in ascertaining just when the policy was delivered; but it must be assumed that it was done some time in January, 1894, and in the early part of that month.
When Dr. Foster was upon the stand', there was presented to him a paper purporting to be signed by Will, and dated on the 12th day of February, 1894. That paper read as follows:
“Received from A. O. Haynes, manager, policy No. 677,804, for $5,000, on my life, in the Equitable Assurance Society. Said policy held for examination, and not in force, as no premium has been paid.
“[Signed] J. A. Will.
“Witness: George V. Foster.
“February 12th, 1894.”
[747] Dr. Foster testified positively that he saw Mr. Will sign that paper at its date, and that at the same time he signed it as witness, and put the date upon it. It was not disputed that the signature was in the handwriting of Will. Mrs. Rey, who was subsequently put upon the stand, did not attempt to dispute that fact, and it is evident from an inspection of the original papers in the case that the handwriting upon the receipt is the same as the handwriting of the signature to the application. It must be assumed, therefore, for the purposes of the case, that this paper, signed by Will, was actually delivered to the defendant. There is some uncertainty or dispute as to whether it was delivered at the time when the policy was delivered. Mrs. Rey testified that the policy was delivered to her husband, Will, by Dr. Foster. This, Dr. Foster denied. He said positively that he never had the policy in his possession at any time, and that he did not deliver it to Will. Haynes, the agent, testified, as did Foster also, that the policy was delivered to Will by Haynes on the day of the date of the receipt, and that the receipt was given to Haynes at the same time. Mrs. Rey was asked whether any receipt was given at the time the policy was delivered to her husband, and she was able to say that she saw nothing of the sort. Evidently that was all that she could say, in the nature of things. But it may be assumed that the receipt was not delivered at the time that the policy was received by Will, but that Will delivered it subsequently, to the defendant’s agent.
We would, then, have this condition of affairs upon the facts which must be taken as established: That some time in the early part of January, 1894, Will received from the defendant’s agent this policy of insurance; that later he delivered to the agent a receipt in which he said that the policy was held for examination, and not in force; and there is no evidence tending to show any agreement on the part of Will with regard to the manner in which he held this policy except this paper, the execution of which is not disputed. What is the legal conclusion to be drawn from these undisputed facts? In our judgment, it is that the paper represents the contract between the parties under which the policy was delivered, and, so long as that paper is not impeached, that there was no complete delivery of this policy, so that it should take effect as a binding instrument. If it had been made to appear that the policy and the paper were delivered at the same time, no one would dispute that the two papers together had the effect claimed for them by the defendant. But although this paper was not shown to have been delivered contemporaneously with the policy, and therefore it cannot be said to be, as a matter of law, an essential part of the whole transaction, it has another effect, which, with the facts which are not disputed, make it decisive in this case. There is no evidence on the part of the plaintiff’s intestate to show that the transaction was not precisely what the defendant says that it was. There was no ■evidence in the case as to whether this policy was issued absolutely to Will or not, except so far as the testimony of Mrs. Rey may bear upon that point. She testified that it was handed to her husband-by Dr. Foster, who said at the time that he had got a policy very [748] cheap, or something like that. But that testimony does not tend in any way to show an absolute delivery to Will. The nature of the transaction was still left to be determined by all that was said and done by the parties to it in relation to the whole matter. This “receipt,” as it is called, was undoubtedly a thing done by Will in regard to the delivery of this policy, and the statements in it must be regarded as his statement of the manner in which he received it. If what is stated in this receipt had been said at the time that the policy was delivered, although it had not been in writing, no one would doubt that the delivery was conditional. The statement of Will in the paper has the same effect as an oral admission that the policy had been received by him conditionally, and not absolutely. This is not disputed. If the evidence had been given by an interested witness, and had stood upon the mere recollection of such awitness, it might well be that the case should have been submitted to-the jury. But there was no uncertainty about it. The writing was-not ambiguous. It was not disputed that it was made and delivered, and the defendant is entitled to all the benefit which an undisputed admission of an uncontradicted fact affords. The whole-transaction, taken together, then, is that this policy was delivered in the early part of January by Dr. Foster to Will; that he afterwards gave back a paper stating that the delivery was conditional, and not absolute; and the execution and delivery of this paper are not disputed. We think that the necessary result of these undisputed facts-was to show that there was no complete delivery of the policy, and that the motion by the defendant to dismiss the complaint upon that ground should have been granted.
For this reason, the judgment and order should be reversed, and. a new trial granted, with costs to the appellant to abide the event.
VAN BRUNT, P. J., and BARRETT and O’BRIEN, JJ., concur.