In the case of Sternaman v. Metropolitan Life Ins. Company, 170 N. Y. 13, the application was separate from the policy and remained in the possession of the insurance company. In this case, pursuant to section 58 of the Insurance Law, as amended subsequently to the decision in the Sternaman case (Consol. Laws, chap. 28, § 58; Laws of 1906, chap. 326, § 16), the application was a part of the contract, and a copy of it, constituting the entire contract, was in the possession of the insured. The real difficulty in the case is whether the retention of the contract of insurance containing the alleged falsified answers constituted an approval by the insured of the application and of its statements, for if it did constitute an approval the assured became a participant in the alleged fraud committed against the insurance company and the consequences of that approval could not after his death be avoided. New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 534. A fortiori, the beneficiary could not assert in an action founded upon the contract of insurance, a part of which was the application signed by the insured, that the answers therein set forth were not made. This rule, however, should not apply where it appears that the insured could not read or write. The basis of the rule is that the insured must be presumed to have become acquainted with the contents of the application that remained in the possession of the insured and is, therefore, estopped. But *384there should be no such presumption in a case where the insured could not read or write. Accordingly, full force must he given to the estoppel against the insurance company from taking advantage of the fraud of its agent. I, therefore, vote for affirmance.
Judgment affirmed, with costs.