I do not agree with the views advanced by my learned colleagues as reasons for the reversal of the order appealed from. This action is brought to recover $2,000, the amount of an insurance policy issued by the defendant on the life of one Aaronson. The policy was issued January 26, .1911. The beneficiary named therein was the plaintiff, who was the mother of the insured. The first year’s premium was paid in advance. On February 17, 1911, the insured died, and proof of death was subsequently furnished to the defendant as required by the terms of the policy. Two questions were submitted by the learned court below to the jury for their determination: namely, first, did the applicant make a false answer to question ten contained in defendant’s exhibit B put to him by the defendant’s medical examiner upon his examination for' the policy; and, second, was *232the defendant’s exhibit B actually the paper containing the question put to the applicant by the defendant’s medical examiner and the applicant’s answers thereto upon his medical examination for the policy? The jury rendered a verdict for the plaintiff, thereby answering both of these questions in the negative. The court below set aside the verdict of the jury on the ground that it was contrary to the evidence and contrary to law. From the order entered upon this motion, the plaintiff appeals to this court. The defendant’s exhibit B referred to in the questions submitted to the jury is an application for insurance on the life of the insured, and purports to contain answers by the latter to certain questions set forth in the application. The alleged false answers were made to questions numbered nine and ten on the application. The questions together with the answers alleged to have been made thereto are as follows:
“9. What illnesses, diseases or accidents have you had since childhood? (The examiner should satisfy himself that the applicant gives full and careful answers to this question.)
“ Name of disease? Acute indigestion — Ptomaine.
“ Number of attacks.
“ Date.
“ Duration. 2 wks.
“ Severity. Last summer.
“ Results. Good.
“ 10. A. How long since you consulted or have had the care of a physician? B. If so, for what ailment; name and address of physician? A., As above. B. Dr. Gershenson, 46 Henry St.” .
The defendant seeks to avoid liability under the policy on the ground that the insured, in making the answers set forth, failed to disclose to the medical examiner that he had other illnesses, and that he had *233consulted other physicians. The application containing the questions, in response to which the answers of the insured were made, was not attached to or endorsed upon the policy. Under these circumstances, they are not to he deemed a part of the policy. Section 58 of the Insurance Law provides as follows: “ Every policy of insurance issued or delivered within the state on or after the first day of January, nineteen hundred and seven, by any life insurance corporation doing business within the state shall contain the entire contract between the parties and nothing shall be incorporated therein by reference to any constitution, bylaws, rules, application or other writings unless the •same are indorsed upon or attached to the policy when issued; and all statements purporting to be- made by the insured shall in the absence of fraud be deemed representations and not warranties. Any waiver of the provisions of this section shall be void. ’ ’
The purpose of this legislation was, as I understand it, that the policy of insurance should itself be treated as the entire contract between the parties, unless other provisions were endorsed upon or attached to the policy when issued. In this case the application upon which the defendant predicates its defense was not endorsed upon or attached to the policy, and, therefore, nothing contained in it can be used as a defense to an action upon the policy.
Becker v. Colonial Life Insurance Co., 153 App. Div. 382, in my judgment, is decisive of the present appeal. The opinion in that ease discusses the authorities in other states, and comments upon the cases upon which the learned court below relied in setting aside the verdict of the jury. Moreover, in the present case an issue of fact was presented as to whether or not the application in which the alleged false answers were contained was the application which the insured made *234for the policy upon which the action is brought. On its face, the application seems to have been made for a different policy of insurance from that which was issued to the insured. In view of the fact that this application was not endorsed upon or attached to the policy that was issued, the question is not important, although the fact that there was a dispute as to which application the defendant relied upon in issuing its policy shows the wisdom of the rule now embodied in section 68 of the Insurance Law.
I vote in favor of reversing the order appealed from and reinstating the verdict, with costs to the appellant.
Order reversed, with costs.