A misrepresentation of a material fact vitiates the policy, whether or not knowingly made. (Kasprzyk v. Metropolitan Life Ins. Co., 79 Misc. Rep. 263.) In Stapleton National Bank v. U. S. Fidelity & Guaranty Co. (131 App. Div. 157) *648the head note in part reads: “ There is an implied condition in a contract of insurance of the truth of all representations of the insured material to the risk, on the faith of which the contract is made, even though they be dehors the policy. Hence, a false statement may be pleaded as a breach of a condition of the policy without an allegation that it was made fraudulently or by mutual mistake.” (See, also, Armour v. Transatlantic Fire ins. Co., 90 N. Y. 450, 456.) There were two representations made: First, that the insured had never applied to any company for insurance without receiving the policy applied for. Second, that no medical examiner had given an unfavorable opinion of the physical condition of the insured with reference to life insurance. It is claimed, inasmuch as the applications for life insurance made prior thereto, and rejected, had been made without the knowledge or authority of the insured, that the question was truthfully answered that the insured herself had not made such application. This seems to me too narrow an interpretation of the question asked. In view of the information sought, and of the purpose for which it was sought, when an application was made for her and rejected, her answer in the negative to the question asked would seem to me to be a misrepresentation of fact which, though innocently made, would void the policy .under the authorities cited. Assume for the argument, however, that such reasoning is good as to the first question asked, how can we escape the fact of misrepresentation as to the second question asked, to wit, whether any medical examiner had given an unfavorable opinion of her physical condition with reference to life insurance. Four applications had been made and rejected by reason of her physical condition. It must be assumed, in view of the evidence, that they were rejected because of an adverse report given by the medical examiner. That this was a most material fact will hardly be doubted. The question is not confined to an application, made by the insured. Upon an application made by any other party, if such an opinion had been rendered by a medical examiner, it would be equally material, and a misrepresentation as to the fact is equally fatal to the policy.
It is urged that by chapter 326 of the Laws of 1906 the law has been changed. It is therein provided, by section 58, added *649to the Insurance Law, “ and all statements purporting to be made by the insured shall, in the absence of fraud, be deemed representations and not warranties.” (Gen. Laws, chap. 38 [Laws of 1892, chap. 690], § 58, added by Laws of 1906, chap. 326; now Consol. Laws, chap; 28 [Laws of 1909, chap. 33], §58.) I do not understand that the Legislature thereby intended to prescribe that a contract made upon misrepresentation of a material fact should still be a valid contract, unless such misrepresentations were fraudulently made.
The rule of law that a contract made upon a misrepresentation of a material fact, although innocently made, is not enforcible, rests upon such sound equity that the Legislature will not be presumed to have intended to have abolished the same unless language were used unmistakably indicating such an intent. It seems clear to me that the object intended to be accomplished by this legislation was to protect the policyholder from the rule of law that had theretofore been held that a warranty of an immaterial fact, if untrue, voided the policy.
The position taken by the plaintiff in this case is a most extraordinary one. As a matter of law it is wholly insufficient to answer the admitted fact of the false representation as to the expression of an unfavorable opinion as to the physical condition of the insured by a medical examiner.
I recommend that the judgment be reversed, with costs, and the complaint dismissed, with costs, and a finding that the deceased misrepresented a material fact, to wit, that no unfavorable opinion as to the physical condition of the insured had been given by a medical examiner, and that such misrepresentation was made for the purpose of inducing the contract of insurance which was made by defendant in reliance thereupon.
Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event. The following findings of fact are disproved of: That Rachel Rakov never had applied to any company for a policy of insurance without receiving the policy applied for; and that a medical examiner had not given an unfavorable opinion of her physical condition; and that her representations in those respects were not fraudulently made.