The..judgment and order should be reversed and a new trial, granted, with costs to. appellant to abide event.
The action was brought to recover upon a policy of accident insurance for' partial disability for a period of twenty-six weeks, by reason of an accident to the plaintiff. - .
The defenses interposed were:
• First. Breach of warranty, plaintiff having stated that his weekly income was $300, which was untrue.
Second'. Failure to give notice of the accident-within ten days.
Third. Failure to furnish proofs of loss within thirty days.
*76Fourth. Excessive reco'very, tw.enty-six weeks at fifteen dollars per week.
The .court directed a verdict for plaintiff leaving only damages to be assessed by jury. "
As. to the first defense, the representations were warranties under the terms, of the policy. .'He‘stated his income was $300 per weék, and.upon-the evidence of the' plaintiff, hiinself given on .the trial. this was untrue. He' had ño such income. This'would seem to have been a perfect defense to the action. (Dwight v. Germania Life Ins. Co., 103 N. Y. 341.) There does not seem to be any adequate answer made to this defense, on the argument, except that" the -statement .was inadvertently made; It was made, howeverwas á warranty; the policy was. issued in - reliance upon it; and it being untrue, the policy is not enforcible.
It is said also that both parties having moved for the direction of a verdict, the court and not the jury had the right to find the facts. But this rule did not authorize the court to find a fact without evidence or directly contrary to the evidence. There was no dispute as to the facts constituting this defense, and .the law is well settled.
We tlfink there wás a failure to serve the ten-day notice and to furnish the' proofs of loss within thirty days, as required by the terms of.the policy.. Whether there was any. waiver may well;be doubted. Certainly" the. damages were excessive in any view of thé case. Plaintiff was not entitled to full twenty-six weeks’ indemnity at fifteen dollars per week, the highest -figure possible to fix. The rate per week should at least have been much less.
There are abundant reasons for granting a new trial in the case.
All concurred. ■
Judgment and order reversed and new trial ordered, with costé to the appellant' to abide: event, upon questions of law and fact.