I find myself unable to agree with the court in the decision about to be handed down. The plaintiff offered evidence tending to show that the agent or solicitor who filled out the application blank, signed by the deceased, did not correctly transcribe the answers. This was objected to on the ground that the contract of insurance *539provided that “ the person soliciting or taking this Application, and also the Medical Examiner, shall be ray Agents as to all statements and answers in this Application, and no statements or answers made or received by any person, or to the Company, shall be binding on the Company unless such statements or answers be reduced to writing and contained in this Application,” etc. The objection was sustained and the plaintiff took an exception.
The language of the contract in this case is, in effect, identical with that contained in the contract under consideration in the case of Bernard v. United Life Ins. Assn. (14 App. Div. 142, 143), and while this department declined to commit itself to the doctrine of this case in O’Farrell v. Metropolitan Life Ins. Co. (22 id. 495, 500), I am of the opinion that since the case of Sternaman v. Metropolitan Life Ins. Co. (170 N. Y. 13) the weight of authority is with the doctrine of the Bernard Case (supra) in so far as it holds that the contract making the “ person soliciting or talcing this application ” the agent of the insured is binding upon the insured and his beneficiaries. The Sternaman case carefully distinguishes between the medical examiner, who is hired by the company to make the examination, who is governed by its rules, and to whom the applicant must submit himself for examination, and the solicitor, and points out that the former is, of necessity, the agent of the insurer from the very nature of his employment, and that facts known to such agent were known to the company, which must be responsible for his fraud or negligence in improperly recording the answers of the insured. While the case does not determine that the solicitor may become the agent of the insured for the purpose of filling out the application blank, this is the necessary inference to be drawn from the discussion. “ There is a difference,” say the court, “in the nature of the work of filling out the blank to be signed by the insured, and that of filling out the blank furnished for the use of the medical examiner. The former is the work of the insured and may be done as well by one person as by another. He may do it himself or appoint an agent to do it for him. It is quite different, however, with the work of the medical examiner, because that requires professional skill and experience and the insurer permits it to be done only by its own appointee. The insured can neither do that work himself, nor appoint a physician to do it, *540because the insurer very properly insists upon making the selection itself. The medical examiner was selected, employed and paid by the company. The insured had nothing to do with him, except to submit to an examination by him, as the expert of the company, and to answer the questions asked by him in behalf of the company,” etc. This reasoning is in harmony with the Bernard Case {sujprá), and we are inclined to the opinion that where the contract provides that the person soliciting the application shall, for the purposes of the answers and statements, be regarded as the agent of the insured, there is no justification for receiving parol evidence that the solicitor has made false entries in the application. The solicitor being authorized to act for the insured in a matter in which the insured might himself act, it is the duty of the party making the application to know that the duty has been faithfully discharged by his agent, and the answers being made warranties, the company is not bound by its contract if the representations of the insured are not substantially true.
In the case now before us the contract provides that “ It Is Hereby Agreed that the answers and statements in this Application (Parts 1 and 2), whether written by myself or not, are warranted to be full, complete and true, and that this Agreement and the Constitution, or By-Laws, Rules and Regulations of the Company with the amendments thereto, together with this Application, are hereby made part of any Policy that may be issued hereon. That if any misrepresentations or fraudulent or untrue answers or statements have been made, or if any facts, whether material or immaterial, which should have been stated to the Company, have been suppressed, or if any of the answers or statements made are not full, complete and true, or if any condition or agreement shall not be fulfilled as required by such Policy, then the Policy issued hereon shall be null and void, and all money paid thereon shall be forfeited to said Company.” There is no dispute that the insured was older than as stated in the policy; this is a fact material in the determination of the cost of insurance and the relative desirability of the risk, and the insured having contracted that the person filling out the blank application was his agent, and having guaranteed the accuracy and fullness of such answers, we are of opinion that it was not error to exclude evidence tending to show that the blanks were not filled out in har*541mony with the statements of the insured made at the time. If the statement of age, as made in the application, was not true, it was the fault of the insured, for he had contracted that it should be true, whether written by himself or not, and as he had a right to make the application himself, he had a right to delegate the work to his agent, and he must be held liable for the errors or frauds of his own agent.
The judgment and order appealed from should be affirmed, with costs.
Jenks, J., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.