(dissenting). I'dissent. I am unable to distinguish this case from Wood v. American F. Ins. Co., 149 N. Y. 382; Skinner v Norman, 165 id. 565, and Stewart v. Union Mutual L. I. Co., 155 id. 257, which hold in substance that the breach of a condition in a policy of insurance may at the inception of the policy be waived by the general agent who delivers the same with knowledge of the breach of the condition even though the policy contain a provision that no such waiver may be made by the agent.
The adherence of our courts to this doctrine, notwithstanding the contrary attitude of the Supreme Court of the United States in Northern Assurance Co. v. Building Association, 183 U. S. 308, and the apparently inconsistent decision of Russell v. Prudential Ins. Co., 176 N. Y. 178, is pointed out in the opinion in the recent case of McClelland v Mutual Life Ins. Co., *224151 App. Div. 264, 269, 270. I fail also to find any distinction in this respect between a breach of a condition and breach of a warranty of fact which, under the terms of the policy, the statement of the assured in the case at bar undoubtedly was. Nor do I think that the application of the rule is destroyed by calling this breach of warranty a fraud. I am not sure that on the whole the transaction presented those elements upon which a finding of fraud may be predicated. But assuming ■ that question to be presented, it was submitted to the jury and its determination must be taken as having been adverse to the appellant in that regard. I think the finding has ample support in the testimony of the plaintiff, to the effect that defendant’s representative persuaded the plaintiff to give tip life insurance which he carried in an insurance company and to take out instead a larger policy with the defendant, advancing a number of arguments to strengthen the inducement so to do; and, although it is true that plaintiff signed the application misstating his occupation, defendant’s representative said to him “ I will fix it up all right. I will put you in as a lunch room.” Under these circumstances, I think that if a finding of fraud were to be made, it might be justified were plaintiff’s claim to be defeated, but it would be rather the defendant that would, under such circumstances, be tailing advantage of the fraud — which indeed, was the precise application of the language quoted in the majority opinion from the Wood Case, supra.
The judgment should, in my opinion, be affirmed.
Judgment reversed and new trial ordered, with costs to appellant to abide event.