The policy of insurance which is the subject of this action, was made upon the application of Richard W. Helwig, August 17, 1887, and by it the defendant upon certain conditions undertook to pay to the plaintiff, his wife, upon *Page 333 his death $5,000. The application was part of the contract and the answers by him to defendant's medical examiner were in continuation of the application, and were warranted by the insured to be true. Amongst those questions and answers were the following: "When last attended by physician and cause? 6 years ago, measles. Name and address of the physician? Dr. Langsman, New York." The charge is that those answers were untrue and that the consequence was a breach of the warranty. And in support of that charge reference is made by the defendant's counsel to the attending physician's certificate made in January, 1888 (verified by his oath), of the death of the insured in December, 1887, in which certificate appear the following questions and answers: "Were you his medical attendant or adviser before his last illness? Yes. If so for what disease and when? For astralgia, about 1½ years ago."
It is urged that nothing in this certificate can be treated as evidence of breach of warranty because it was made to furnish proofs of the death of the insured; and that the matter of the declaration in question of the physician was such as he would not be permitted to disclose as a witness. It is true that by the contract the furnishing of proofs of death of the insured was made a condition precedent to the liability of the defendant. But by the policy it does not appear that the beneficiary of the insurance was to do anything more in that respect than to furnish to the defendant satisfactory proofs of death of the insured, upon the acceptance of which, and upon the conditions referred to in the policy, the defendant undertook to pay the amount of the insurance, so that it was not essential to such proofs, to represent his condition or medical treatment preceding the time of his death. It must be assumed that the certificate was put in evidence by the plaintiff, as it appears in the record after the case was opened on her part and before she rested; and in that view those statements of the physician were made evidence and tended to prove that the answers before mentioned of the insured to the questions of the medical examiner were untrue so far as they related to the time he had been last attended by a physician for medical treatment. *Page 334 (Insurance Company v. Newton, 22 Wall. 32; Buffalo L.T. S.D. Co. v. Knights T. M.M.A. Assn., 126 N.Y. 450.)
The fact that the defendant would not have been permitted to introduce in evidence this declaration of the physician appearing in the certificate, is not important for the purposes of the question here presented, as the certificate was made evidence by the plaintiff without, so for as appears, any qualification.
If, as claimed by the plaintiff's counsel, the blank certificate was furnished by the company, it is not seen how that fact aids the plaintiff on this review.
The court was requested by the defendant's counsel to charge the jury that this statement of the doctor in the proofs of death, was to be taken into consideration by them. And the exception to the refusal to so charge was well taken.
For that error the judgment should be reversed and a new trial granted, costs to abide the event.
All concur, except HAIGHT and BROWN, JJ., not sitting.
Judgment reversed.