Annie Smith, as Administratrix, etc., of Peter Smith, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant

Annie Smith, as Administratrix, etc., of Peter Smith, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant. Life insurance■—alleged misdescription of the “ occupation” of one in charge of a gang working on city water pipes—whether “inspector” or “laborer"—the question of identity is for the jury. To describe an applicant for life insurance employed in taking charge of a gang of men working on city water pipes as a “laborer” rather than as an “ inspector,” does not constitute a false description of his occupation. The question as to the identity of the “ Peter Smith ” making the application for insurance with the “ Peter Smith ” proved to have died, when fairly submitted to and decided by the jury, will not be reconsidered by the court. Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24tli day of February, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 24th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes. William O. Campbell, for the appellant. Christopher Fine, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The action was brought upon a policy of life insurance, whereby the defendant insured the life of one Peter Smith in the sum of $1,000, payable at his death to his executors, administrators and assigns. Peter Smith died intestate on the 3d of November, 1894. The defendant sets up in its answer several defenses, but insisted upon the trial only upon the defenses that the policy was issued upon the application of some person to defendant unknown, whom the defendant then believed to be Peter Smith, but who was not Peter Smith; that such policy was issued upon a medical examination of such unknown person, who declared himself to be Peter Smith, when in fact he was some other person; and, further, that there was a breach of the warranty upon which such policy was issued. There was evidence upon the trial which tended to show that the Peter Smith who was examined by the medical examiners of the defendant, upon which examination this policy was issued, was not the plaintiff’s intestate, the Peter Smith upon whose death plaintiff demands payment of the amount named in the policy. That question, however, was submitted to the jury, the defendant taking no objection or exception to the charge and making no request to charge except one which was acceded to; and the jury having found that the person examined by the physician of the' defendant company as the applicant for the insurance was Peter Smith, the deceased, and the husband of the plaintiff, we should not disturb that verdict, as from an examination.of the testimony it is clear that the verdict is supported by the evidence. The other question, as to whether or not there was a breach of the warranty, was also submitted to the jury, the learned judge charging, “ The question, therefore, to be determined by you is whether the answers to the defendant company were true or not true. If any one of them was untrue your verdict must be for the defendant. If they were all true and the deceased was the real party examined by the defendant company, the plaintiff is entitled to a verdict at your hands for $1,000, with interest.” The only breach of warranty that is insisted upon on this appeal is that in the application the assured is called an inspector, while in the claimant’s certificate and the attending physician’s certificate included among the proofs of death furnished to the company, he is described as a laborer. It appeared by the evidence that, at the time of the application for the policy, the deceased worked on the Croton water works, having charge of a gang of men working on the Croton water pipes. . We do not think that to describe a man engaged in such an occupation as an inspector is a false description of his occupation. As to the other representations which are claimed by the defendant to be false, it is sufficient to say that the verdict of the jury is amply sustained by the evidence. The burden is on the defendant of showing that such representations or some of them were false and that it has not sustained that burden. Upon the whole case we think no error was committed which requires us to reverse the judgment, and that the verdict of the jury was sustained by the evidence. The judgment is affirmed, with costs. Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred. Judgment affirmed, with costs.