Rose Malara, as Administratrix, etc., of Antonio Malara, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant; Michael Madura, as Administrator, etc., of Annie Madura, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant

Rose Malara, as Administratrix, etc., of Antonio Malara, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant. Michael Madura, as Administrator, etc., of Annie Madura, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant. Second Department, December 28, 1911. . Insurance—misrepresentation as to state of health—verdict on conflicting evidence -^-principal and agent—negligence of insurance agent. '■ Where in an action on an industrial insurance policy there, is a conflict of evidence as to whether the insured made misrepresentations as to his state of health when applying for the policy, and the plaintiff gives evidence that the-signature of the insured to the application was obtained before any of the blanks were Ailed in and. that no questions as to his state of health were asked, a verdict for the plaintiff will not be reversed. Where the agent of the insurance company on obtaining the signature to the application for insurance neglected to get information as to the state of health of the insured, which information was calledfor by the printed application, -and thereafter weekly premiums were accepted,, the insurer ’ cannot repudiate -the contract. Appeal in the first action by the defendant, The Prudential Insurance' Company Of America, from a judgment of the .City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 7th day of March, 1911, upon the verdict of a jury,, and also from an Order entered. in said clerk’s office on the 15th day of March; 1911, denying the defendant’s motion for a new trial made upon the minutes. Appeal' in the second action by the defendant, The Prudential Insurance Company of America, from, a judgment of the -City .Court of Yonkers' in favor of the plaintiff, entered in the office of the clerk of' said couiit on the 11th day of April 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes. Joseph W. Middlebrook [Alfred M. Bailey with him on the brief], for the appellant. Thomas F. Curran, for the. respondents. [MAJORITY — Per Ouriam:] Per Ouriam: While each of these cases is distinct from the other, they were tried by the same attorneys and the questions presented are substantially the same. They were submitted together, and but one discussion seems to be necessary. The plaintiffs in both eases seek to recover upon industrial insurance policies, one of them on the basis of the payment of ten cents per week and the other upon twenty-five cents per week, and the defense in both cases is that there were misrepresentations of material facts in the • applications; that the applicants warranted the representations that they were in good health and had not been afflicted with tuberculosis or other fatal maladies. In each case this defense was met .by the testimony of witnesses, conceded to have been present when the application was signed; who stated that none of the questions relating to health were asked of the applicant, but that the blanks were filled in after the signatures were obtained, and not in the presence of the insured. There was a conflict of evidence upon these points, but it cannot be said that the verdict of the jury in favor of the plaintiffs is not supported by the evidence, and it is not customary for this court to overturn a verdict where the testimony is conflicting, and especially in this class of cases, where common experience teaches that the methods employed are in entire harmony with the testimony. Here the evidence indicates that the agents secure the application, and the company’s doctor goes around and makes an “inspection,” which is merely a hasty observation of the applicant, and in the case of'the ten-cents-per-week applicant no pretense of a medical examination is made. Knowing the informalities in common vogue in the transaction of business, and taking into consideration the anxiety of agents to get applications filled, and the necessarily small commissions to be earned, it is easy to understand how the "work of filling out the blanks would be undertaken by the agent without- going to the trouble of making the detailed examination which is required by the form. His work is to get the signature; this once done, the filling out of the answers is simple, and if the company’s agent neglects to get the information which, upon its face, would vitiate any policy written, and accepts the insured’s weekly contribution, there is no. reason in law why the company should not fulfill its contract. ... The judgments and orders appealed from should be. affirmed, with costs. Jenks, P. J., Hirschberg, Woodward and Rich, JJ., concurred; Thomas, J., concurred in result. In each case judgment and order of the City Court of Yonkers affirmed, with costs.