The application for the certificate was made by Charles Stephan, October 10, 1883, and he died December 27, 1883. Upon the trial much testimony was given on the part of the defendant tending to show that several of the answers made by the insured in his application and upon his medical examination were not “fully and truly” answered. According to the terms of the contract, these answers were warranties; and, if not fully and truly made, the contract was, by its own terms, void. Such was the agreement of the parties to it,—an agreement which it is hardly necessary to say it was entirely competent for the parties to make, and which the court cannot unmake, but must accept as made, and enforce. Foot v. Insurance Co., 61 N. Y. 571; Cushman v. Insurance Co., 63 N. Y. 404; Baker v. Insurance Co., 64 N. Y. 648; Edington v. Insurance Co., 77 N. Y. 564, 100 N. Y. 536, 3 N. E. Rep. 315; Bryce v. Insurance Co., 55 N. Y. 240; Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. Rep. 654. In the application1 made by the insured, there was one question, the eighth, which required an answer respecting the age, health, etc., of the father, mother, brothers and sisters, and grandparents of the insured. The question was: “State, so far as you know, what was the age at death, cause of death, duration of final illness, and state of previous health, of each of the following persons, if deceased? What is the age and present state of health of each of them if now living?” Following this question were these, among others: Ninth. “Are you now in good health, and is your health usually good?” The answer was, “Yes.” Tenth. “Have you ever had any serious illness, local disease, or personal injury. If yes, state nature, date, and duration and severity of attack.” The answer was, “Ho.” Fourteenth. “Home and residence of your usual medical attendant?” The answer was, “Hone.” The testimony on the part of the defense tended to show that the answers given were false. The court charged the jury that the qualification in the eighth question, “so far as you know,” was implied and understood in each of the other questions. The court said, referring to the latter questions and the answers to them: “If he [the insured] does answer, according to the judgment of the jury, fairly and honestly, then he has performed his warranty.” We think the learned judge fell into an error. The qualifying words in the eighth question are manifestly inserted because the insured is called upon to speak with respect to the health, etc., of others. He was supposed to have some, but possibly he had only small, knowledge of the matters inquired of. Respecting himself, and his own health and medical attendant, he was presumed to know. If the charge of the court in this respect is sustained, then the insured, whose warranty required him to answer “fully and truly,” might with entire safety have answered falsely and partly, if the jury should think they could excuse him upon the ground that he answered “fairly and honestly.” It is not difficult to see that such a definition of the terms of the contract opened the way for the jury to hold the defendant liable, although every answer of the insured might have been false, and known by him to be so. It substituted for the fact itself an inquiry into the dead man’s belief respecting the fact. It is enough to say that the defendant had entered into no contract requiring it to abide such a hazard.
The defendant urges that the plaintiff has no title to the certificate or to the claim against the defendant, if any valid claim exists. The eighteenth sec*82tian of the act under which the defendant was organized (chapter 175, Laws 1883) gives a member the right, with the consent of the association, to make a change in his beneficiary. The act gives the association power to make by-laws for the conduct of its affairs. Section 4. The defendant’s by-laws provided that the member desiring to change his beneficiary should execute a certificate before a notary public or other proper officer, “in such form as the executive committee shall prescribe or appoint,” stating his name in full, number of certificate, name and place of residence of the beneficiary whom he desires to substitute, name or names of those whom he desires to supersede, and file' it with the secretary of the association, who shall, upon its receipt, immediately examine it, and if in due form, duly executed and acknowledged, he shall make the proper entries to show that the change has been made. “No change of beneficiary shall be effectual unless the certificate thereof shall have been filed, examined, and found correct, and the necessary change made in the records of the association, before the receipt of notice of the death of such member.” Here Charles Stephan, the insured, executed and acknowledged an assignment before a notary public on the 25th day of October, 1883, and delivered it to the plaintiff. The assignment complied with all the specified requirements of the by-laws, except it did not give the names of the beneficiaries to be superseded. It was delivered to the secretary of the defendant on or previous to November 19, 1883. On that day the secretary wrote to the plaintiff that “the association has to inform you that it duly received a certificate made by Charles Stephan substituting your name as the beneficiary of his certificate of membership in this association. Such certificate is numbered 244. ” No objection was taken to the form, contents, or omissions of the assignment. The defendant spoke of it as “substituting your name as beneficiary;” and we think that declaration is evidence against the defendant sufficient to support a verdict that the assignment had been duly examined, filed, approved, and the proper entry made, and the change in beneficiary effected. There is no evidence that these acts were not done by the association. Our examination leads to the conclusion that the law does not defeat the plaintiff’s right of recovery upon the ground of defects in his paper title, but makes it dependent upon the issues of fact.
As there must be a new trial for the reasons first assigned, we do not deem it needful to examine the other grounds of error alleged, since, upon a new trial, they may not arise. The judgment should be reversed; a new trial granted; costs to abide the event.
Learned, P. J., concurs. Ingalls, J., not sitting.