The judgment in favor of the defendant has been affirmed by the General Term upon the ground that one defense pleaded was established without contradiction, and formed a complete bar to the plaintiffs' recovery. Upon a previous appeal to this court, and on the same state of facts as it respects the defense referred to, that result was reached, although a majority of the court placed their concurrence upon a different ground. (77 N.Y. 564. ) Undoubtedly the appellants had the right to deem the question open in this court, and seek to convince us that the doctrine of the prevailing opinion was incorrect. But we are not convinced. Windsor was the agent of the Mutual Benefit Insurance Company, and as such agent was authorized to receive applications for insurance; he was furnished with blank forms, which, when filled out and signed by the applicant and delivered to the agent, constituted and completed the application for insurance. Every thing that followed the application was an element of its result. Such an application Diefendorf signed and delivered to the agent. When that was done he had made an application to the Mutual *Page 539 Benefit Company, for insurance. No other act of his was needed. What the company through its officers and agents might do or omit to do with it constituted the result of the application, as to which a truthful answer was required. A false answer was given. The application was made and was not successful. If the truth had been told the present policy would never have been issued. The test is, not whether Windsor or the medical examiner had authority to finally reject the application. If they were utterly without authority to dispose of it, and so the company never acted upon it, at least there was an application to the company which was not successful and did not end in an accepted insurance. Our present consideration of the question leads us to an approval of the views expressed on the former appeal.
The judgment should be affirmed, with costs.
All concur, except DANFORTH, J., not sitting.
Judgment affirmed.