When this case was before this court on the former appeal (22 App. Div. 495) the question presented was as to the construction of the ■contract which it was claimed made the agent taking the application the agent of the insured for all purposes so as to conclude the latter for any act, either of mistake, misconduct, or otherwise, of the agent. In the present case such question is not presented, as the claimed misstatement of the insured which it is insisted avoided the.policy was not made in the application for insurance, but was made to the ■examining physician, and it is conceded by the appellant that - such physician was the agent of the company, and riot of the insured. The claimed breach of warranty consisted in giving a false answer to the following question: “ Did any of the parents, grandparents,' brothers or sisters of the life proposed ever have consumption, or any pulmonary‘or scrofulous diseases? ” ' To this question the medical examiner wrote “ no.” This answer, if made, was false in fact, •and avoids the policy.
Upon the trial the plaintiff gave evidence from an agent of the company who was present at the time when the medical examination was had, to the effect that he heard the question asked, and in reply the insured stated that he “ did not know.” The -physician testified that he put down the answers as. given by the insured correctly as they were given, and read the sarrie over after they were-written down, when the insured signed it. He had no personal recollection of the examination of the person examined, and all that he was able to testify to was based upon the application and the fact that he had made the examination.
If it be accepted as the fact that the insured made answer to this ■question by stating that he did not know, then such fact became one known to the company, as it was known to its agent, and if it thereafter chose to deliver the policy and accept the payment of premiums thereon, it became bound according to the tenor of its terms. (Quinn v. Metropolitan Life Insurance Co., 10 App. Div. 483.)
"We are of opinion that upon the evidence such question became one of' fact for the jury to determine, and that this court is required to give effect thereto. So far as the declarations as made to the agent of the company prior. to the medical examination are concerned, it is evident that the attitude of the court in admitting the *556answers was tentative merely, as the court’ expressly reserved the right to the counsel for the defendant to move- to strike out such evidence, if it was subsequently found upon all the proof to be incompetent. Subsequently, and before the plaintiff rested, the court stated to the defendant that it might then move to strike out. the objectionable testimony; the defendant availed itself of this privilege, and upon its motion the testimony was stricken out. This ■ cured whatever error had been committed in its previous-reception. t
There are no other questions in the case, and it follows that the judgment should be affirmed.
All concurred.
Judgment and order affirmed, with costs.