Opinion
March, 1930.
Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. The answer adequately pleaded the defenses based upon fraudulent misrepresentations of material facts. The undisputed facts established that the representation contained in clause "1" of the application was false, and that representation was material as a matter of law under the undisputed facts herein. No question of fact existed for submission to the jury with respect to whether such representation was intentional or was due to mistake. ( American Surety Co. v. Patriotic Assurance Co., 242 N.Y. 54, 64; Satz v. Massachusetts Bonding Ins. Co., 243 id. 385, 393; Bollard v. New York Life Insurance Company, 182 App. Div. 915; affd., 228 N.Y. 521; Armour v. Transatlantic Fire Ins. Co., 90 id. 450, 456; Ins. Law, § 107, subd. f.) This disposition with respect to that clause makes unnecessary a decision of the same and similar questions with respect to clause "k" as the determination with respect to clause "l" is decisive of the controversy herein. Lazansky, P.J., Young, Kapper, Hagarty and Carswell, JJ., concur.
Added by Laws of 1913, chap. 155. — [REP.