The opinion of the majority of the court assumes, as I read it, that, the false statement in the application' in relation to the number and ages of the insured’s children *654is such as to tender the policy void in case the plaintiffs are bound by it. This assumption must be correct. The contract specifically provides that any false statement in the application renders the contract void. Its materiality is not open to question. Section 58 of the Insurance Law declares that in certain policies such statements, although agreed to be warranties, are, nevertheless, to be treated as representations invalidating the contract only in case they are material. But section 58 of the Insurance Law has no application to the contracts of fraternal benefit organizations. (Hoff v. Hoff, 175 App. Div. 40.)
The determining question in this case is whether the plaintiffs are estopped by the conduct of the insured from disputing the fact that the warranty in the application was in fact the warranty of the insured. Llere I feel constrained by the authority of Stanulevich v. St. Lawrence Life Assn. (228 N. Y. 586). It seems to me on all fours with the instant case. There, as here, section 58 of the Insurance Law was not applicable. (Baumann v. Preferred Accident Ins. Co., 225 N. Y. 480.) There, as here, the application was a part of the policy. In the present case that is so both by the terms of the contract and by virtue of section 232 of the Insurance Law (as added by Laws of 1911, chap. 198). There, as here, the application was physically annexed to the policy. In that case, as in the present one, the insured was illiterate.
In Davern v. American M. L. Ins. Co. (241 N. Y. 318) it is recognized that under certain circumstances (substantially like those here presented) an insurance company has the right to rely upon the correctness of answers made part of the policy; and in.view of the decision of the court in the Stanulevich case, I must vote for reversal.
Taylor, J., concurs.
Judgment affirmed, with costs.