The rule is well settled that upon the trial of a case at circuit, if the weight of evidence is so decided in favor of either party that a verdict against such party would be set aside, it is proper for the judge to direct a verdict. In this case the weight of evidence was so decidedly against the plaintiff that a verdict in his favor would have been immediately set aside, and the judge very properly dismissed the complaint upon the merits. The action was upon a mutual or fraternal certificate or policy issued by the defendant to the husband of the plaintiff. Prior to the issuance of the certificate, there was an application and medical examination, which, by the terms of the certificate, was made a part of the contract. Under the questions and answers contained in the examinations, and signed by the deceased beneficiary, was the following clause: “I hereby warrant the truthfulness of all the answers given to the above questions.” The court was clearly right in holding that this was a warranty. Ripley v. Insurance Co., 30 N. Y. 157; Clemans v. Supreme Assembly, 131 N. Y. 485, 30 N. E. 496; 1 Bid. Ins. § 543; and other cases too numerous to refer to. It was proved beyond question that these answers, in many particulars, were false and fraudulent. These matters avoided the certificate. It is immaterial whether the answers made by the assured were considered as warranties or representations to obtain the certificate. U false, they equally avoid the contract. Cushman v. Insurance Co., 63 N. Y. 408; Higbie v. Insurance Co., 53 N. Y. 603; 1 Bid. Ins. § 531. The weight of evidence was so clearly in favor of the defendant that no other course was open to the court except to dismiss the complaint. Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. 654, and cases there cited. What I have now stated is upon the assumption that the court was right in permitting the doctors to testify as to information they acquired while attending the insured in a professional capacity. We think the court, in this respect, committed no error, as the privilege contained in section 834 of the Code of Civil Procedure had been expressly waived by the insured. In the application for insurance, which is made a part of the contract, are the following words:
“And for myself, and for any person accepting or acquiring any interest in any benefit certificate issued on this application, I hereby expressly waive any and all provisions of law now existing, or that may hereafter exist, preventing any physvfihn from disclosing any information acquired in attending me in a professional- capacity or otherwise, or rendering him incompetent as a witness in any way whatever; and I hereby consent and request that any such physician testify concerning my health and physical condition, past, present, or future.” "
*956There can be no doubt that such a waiver was effective,' and had reference to a trial upon the policy after the death of the insured, as there could be no occasion to use it until such time. In re Coleman, 111 N. Y. 220, 228, 19 N. E. 71; Alberti v. Railroad Co., 118 N. Y. 77, 23 N. E. 35; Rosseau v. Bleau, 131 N. Y. 177, 184, 30 N. E. 52; Cahen v. Insurance Co., 41 N. Y. Super. Ct. 296; Railroad Co. v. Martin, 41 Mich. 667, 3 N. W. 173; Adreveno v. Association. 34 Fed. 870. This- agreement to waive the privilege was an essential part of the contract,—as much so as the payment of the premium. The defendant was not prevented from showing what were the real facts, by the production of the medical certificate of their own medical examiner, any more than they would have been from showing that any witness they put upon the stand was mistaken or incorrect upon some point in his testimony, so long as it was not done to impeach him. No point is made by the plaintiff as to change of beneficiary, or that the declarations of the insured were not properly received in evidence. There are no other points raised that require notice. Judgment affirmed, with costs.