The single question presented by the appeal is whether warranties on a policy of burglary insurance may be avoided by proof that the insurer knew the actual facts when the policy was written and that the facts Were such that the *200warranties could not be true. It was held below that such knowledge on the part of the insurer is immaterial and hence that the defendant was entitled to judgment, the falsity of the warranties being admitted.
We disagree with the conclusions so reached. The contrary principle appears to be established by numerous decisions. (Van Schoick v. Niagara Fire Ins. Co., 68 N. Y. 434; Robbins v. Springfield Fire Ins. Co., 149 id. 477; Forward v. Continental Ins. Co., 142 id. 382; Lewis v. Guardian Fire & Life Assur. Co., 181 id. 392; New York, etc., Assn. v. Westchester Fire Ins. Co., 110 App. Div. 760; affd., 189 N. Y. 525; McClelland v. Mutual Life Ins. Co., 217 id. 336; Thebaud v. Great Western Ins. Co., 84 Hun, 1; affd., 155 N. Y. 516.)
The opposite result has been reached in actions against life: insurance companies upon policies written since the enactment of.' section 58 of the Insurance Law. (Bollard v. N. Y. Life Ins. Co.,, 228 N. Y. 521; Stanulevich v. St. Lawrence Life Assn., Id. 586; Grubiak v. John Hancock Mut. Life Ins. Co., 212 App. Div. 126.) But' the cases first cited have not been overruled and the statute only applies to life insurance policies. (Baumann v. Preferred Accident Ins. Co., 225 N. Y. 480.)
The order and judgment must be reversed, with costs,, and the motion denied, with ten dollars costs.
All concur; present, Burro, Levy and Churchill, JJ.