Judgment and order of the City Court of Yonkers reversed upon the law, and new trial ordered, with costs to abide the event. It was error for the court below to direct a verdict for the defendant, as a matter of law. A false statement in an application attached to a policy of insurance, under' the facts shown in this case, is not in and of itself a warranty, without proof that such false statement was fraudulently and willfully made, which is for the jury to determine where there is conflicting evidence. (Ins. Law, § 58; Charlton *715v. Metropolitan Life Ins. Co., 202 App. Div. 757; Id. 814; affd. without opinion, 234 N. Y. 639.) No case of rescission was pleaded or made out by the defendant in the absence of a tender or offer to restore the premium collected. (McClelland v. Mutual Life Ins. Co., 151 App. Div. 264, 271.) Kelly, P. J., Jaycox, Manning, Young and Kapper, JJ., concur.