I concur, upon the ground that the survey and application does not form any part of the policy, and that the representations therein are not warranties. If, in fact, they were warranties, I should be inclined to hold that, having been proved on the trial, without objection, and thus forming part of the case furnished to us, we might disregard the defect in the pleadings, and give effect to the proof.
Potter, J., dissented.