This action was brought to recover on what is known as an industrial life insurance policy. The serious question presented on this appeal arises out of the exclusion by the learned court below of all evidence of the falsity of a statement made by the insured in her application, which was not attached to the policy in suit, in answering question No. 12, “ Is life proposed, now insured in any other company? ” to which the answer was “No.” This testimony was excluded on the theory that section 58 of the Insurance Law forbids its consideration in aid of a defense of fraud in the procurement of the policy. Section 58 reads as follows: “Every policy of *478insurance issued or delivered after January 1st, 1907, * * * shall contain the entire contract between the parties, and nothing shall be incorporated therein by reference to any * * * 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.”
From the record it appears evident that the learned court below was urged by defendant-appellant to disregard section 58 because of section 101 of the Insurance Law; and correctly held that the general language of section 58 was not affected by the latter section.
It appears also that the case of Becker v. Colonial Life Insurance Co., 153 App. Div. 382, decided in November, 1912, was relied upon. The Becker case, however, approved the exclusion of a representation made in a statement not indorsed upon a policy only because the policy there in suit provided that “ the consideration for the issuing thereof is the application therefor which is hereby made a part of this contract.” The application was actually annexed to the policy and called “ a copy of the application upon which this policy is issued.” The court there said: “ The parties had a right to stipulate * * * that the inducing cause of the contract * * * was certain specified statements and representations, and none others * * * Having so stipulated, and having attached one application thereto, if any others were made, the defendant in effect said, these are not material and are not relied upon by me.” In other words, the exclusion of evidence of representations contained in an application not annexed to the policy was sustained because, by the language of the policy itself, the representations were rendered immaterial. *479There is no such condition presented in the case at bar, and, indeed, in the Becker case, the court said (at page 386): “ We are not called upon to decide at this time what the effect would have been under the New York statute if neither decedent’s personal application nor any other paper in the nature of an application had been attached to the policy.”
Section 58 of the Insurance Law provides only that the entire contract,' as executed, must be contained in the policy, and that nothing shall be incorporated therein by mere reference to other documents unless they are attached to the- policy. It was perhaps quite competent for the legislature to have enacted that no statement made by the assured, unless the statement or a copy thereof be attached to the policy, shall be available to avoid the same; but I cannot find either by expression or implication any intimation to that effect in section 58.
Wheelock v. Home Life Insurance Company, 131 N.W. Rep. 1081 (Minn., 1911), turned upon the language of a Minnesota statute which is altogether different from ours in this respect. Minnesota Laws of 1907, chapter 220, provides that every insurance policy must contain the following clause: “All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statements shall avoid such policy unless it (sic) is contained in a written application, and a copy of such application shall be indorsed upon or attached to the policy when issued.”
The Supreme Court of Minnesota held that, under a provision so broad, a false statement in an application not attached to the policy could not be availed of to defeat it. And in the Becker case it is pointed out that the same distinction, i. e., between statements forming a part of a contract, and statements made anterior to its execution for the purpose of inducing the same, *480is noted in Mutual Life Insurance Co. v. Allen, 166 Ala. 159. See also Empire Life Insurance Company v. Gee, 171 Ala. 435.
In Aaronson v. New York Life Insurance Co., 81 Misc. Rep. 228; 142 N. Y. Supp. 568,1 had occasion to discuss the question here presented because it was covered by the opinion of the learned court below as one of the grounds for setting aside a verdict; but the decision of this point was not directly involved in that case. Mr. Justice Seabury, who dissented from the view of the majority on this particular question in the Aaron-son case, nevertheless concurred in the result because of the other reasons stated in the opinion there. Under the circumstances it seems to be proper to decide this point in the case at bar on the assumption that there has been no adjudication thereon.
It is to be noted in passing that, through some inadvertence either in transcription or printing, two paragraphs in our opinion in the Aaronson case have been distorted. In the last paragraph of the prevailing opinion the word ‘ ‘ defendant ’ ’ should read ‘ ‘ plaintiff.” The sentence at the beginning of the third paragraph, on page 229, should read as follows: “As the defense was, in substance, fraud or false representations inducing the making of the policy, it is evident that, if the jury answered both of the above questions in the affirmative, the verdict must have been for defendant ; and as it was for the plaintiff, it is clear that the jury must have answered one or both of these questions in the negative.”
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Judgment affirmed, with costs.