Dilleber v. Home Life Insurance Company. him on the unlawful agreement credited on the bond and mortgage. Crane v. Hubbel, 7 Paige, 413; Judd v. Seaver, 8 id. 548. The plaintiff on the trial waived any claim for a judgment for a deficiency against the defendant. The Special Term inadvertently included in the direction for judgment a direction that the defendant should be adjudged to be liable for any deficiency arising on the sale. The judgment entered directs the referee making the sale to specify in his report of sale the amount of such deficiency, but it does not in terms adjudge the defendant liable therefor. The plaintiff's counsel on the argument consented that the judgment be modified by inserting a provision declaring that the defendant was not liable for any deficiency. The judgment is therefore modified in this respect, and as so modified affirmed. There are cross appeals. The plaintiff has failed in his appeal, and the modification of the judgment in favor of the defendant could not, we think, upon the exception taken, have been demanded. as a right. Neither party should have costs of the appeal in this court. Judgment accordingly. DILLEBER V. HOME LIFE INSURANCE COMPANY. (69 N. Y. 256.) Life insurance Declarations of insured — Construction of warranties. In an action on a policy of insurance on a life of a husband for the benefit of his wife, the fact that he had had a disease denied in the application being proved, his declaration to the same effect, prior to the application, held competent, not to prove the fact, but his knowledge of it. An attending physician is incompetent to testify as to information of the condition of the insured, acquired in his attendance and necessary to enable him to prescribe. In case of a partial answer a warranty will not be extended beyond the answer. Although fraud may be predicated upon a suppression of truth, warranty is only based on an affirmation of something not true. In case of a warranty that the answers contained in the application were full, correct, and true, the insured, in answer to a question whether he had had Dilleber v. Home Life Insurance Company. any disease within ten years, and if so, to give name of physician, stated that he had had an attack of fever nine years before, and gave the name of the attending physician. Held, that the fact that he had had other sick. nesses and physicians did not constitute a breach of warranty. A CTION on a policy of insurance issued by defendant on life of plaintiff's husband. The facts sufficiently appear in the opinion. A verdict was directed for defendant, and the General Term having directed judgment thereupon, the plaintiff appealed. EARL, J. On the 17th day of August, 1867, the plaintiff took out a policy in the defendant upon the life of her husband, payable to him on the 14th day of August, 1902, if he should then be living, but in case of his death before that time, payable then to her. He died September 5, 1871, and this action is brought to recover the amount insured. The action is defended upon the grounds of breach of warranty, and fraud in the representations contained in the application upon which the policy was issued. At the close of the evidence, upon motion of defendant's counsel, the court held that the uncontradicted evidence showed breach of warranty in the answers to certain questions contained in the application, and upon that ground directed a verdict for the defendant. Plaintiff's counsel excepted to the direction, and asked to have all the questions of fact submitted to the jury, and excepted to the refusal of the judge to comply with the request. The plaintiff and her husband answered "no" to questions in the application whether he had ever had the diseases of bronchitis, consumption, or spitting of blood, or, so far as he knew, any symptoms of such diseases; whether he had ever had disease of any vital organ; and whether he had ever had any habitual cough. Upon the trial, after defendant had given evidence by physicians and other witnesses, that prior to the date of the policy the assured had spit blood and had a cough, and had symptoms of consumption, its counsel offered in evidence certain letters written by the assured to his brother. One written August 20, 1866, in which he stated, "at Binghamton I was taken with hemorrhage of the lungs. which made me look ghastly for a few days; am taking cod liver oil, and drinking tar water; do not cough much now; and another written June 21, 1867, in which he stated, "my health is very poor; my cough hangs on to me; yesterday I was examined, and I find my right lung is affected; my physician recommends a Dilleber v. Home Life Insurance Company. trip to the salt water, and perhaps I may go in the course of a few days." Plaintiff's counsel objected to these letters, on the ground that the statements were those of a person having no interest in the policy, mere hearsay, and not admissible. The court overruled the objections and received the evidence, and plaintiff's counsel excepted. It was not specified for what purpose these letters were offered or received, and the objection was general, calling for their total exclusion. Hence, if they were competent for any purpose there was no error in receiving them. It is now well settled that they were not competent to prove the facts stated in them. Swift v. The Mass. Mut. Life Ins. Co., 63 N. Y. 186; s. c., 20 Am. Rep. 522; Edington v. The Mut. Life Ins. Co., 67 N. Y. 185. But it was important for the defendant to show that the assured had knowledge that he had had symptoms of consumption, and for the purpose of showing such knowledge, the facts being otherwise proved, within the cases above cited, the letters were competent. Hence there was no error committed in receiving these letters, but they must be treated as received for the sole purpose for which they were admissible. The defendant called several physicians, and asked them to disclose information which they had acquired as to the condition of the assured while attending him professionally, and which information was necessary to enable them to prescribe for him as physicians. The evidence was objected to by plaintiff's counsel, on the ground that the statute prohibited such disclosures. The objection was overruled, and the evidence was received. It is not now disputed that the court erred in receiving this evidence. 2 R. S. 406, § 73; Edington v. Mut. Life Ins. Co., supra. But the claim is that this evidence did not harm the plaintiff, as the other evidence was overwhelming and undisputed that there was a breach of warranty. With this view all the evidence of the physicians called by the defendant as to the diseases of the assured must be stricken out. It is true that the plaintiff did not object to the evidence of Dr. Clark, who attended the assured at Niagara Falls in 1867, prior to the date of the policy. But having already made her objections three times to the same class of evidence, it was not necessary that the objection should be repeated. The reception of this evidence was the consequence of the erroneous rule of law laid down in the disposition of the prior objections, and it must be treated as having been received under the ruling. Dilleber v. Home Life Insurance Company. When upon a trial an objection has once been distinctly made and overruled, it need not be repeated to the same class of evidence. The rule in such cases has been laid down and should be observed in the further progress of the trial, without further vexing the court with useless objections and exceptions. Nothing is waived by conforming to the rule laid down. Hence, Dr. Clark's evidence, like that of the other physicians, must be treated as out of the case. The letters, as above said, cannot be used to prove the facts stated in them. After all this evidence is stricken out, the defendant has lost the main features of its defense. It has left the evidence of several lay witnesses as to the spitting of blood by the assured to some extent, and as to his coughing and his appearance on several occasions. But on the other hand, the plaintiff has the certificate of defendant's examining physician, made at the time of the application, showing a perfect state of health, and the evidence of two physicians and other witnesses tending to show freedom from disease, a good state of health prior to the date of the policy, and that the spitting of blood may have been casual, and not the result of any disease. Without the improper evidence, there would have been such a conflict in the evidence as to his diseases and the state of his health before the date of the policy, as to have required, as demanded by the plaintiff, a submission of the questions to the jury. For the error thus alluded to, then, the judgment must be reversed, unless for considerations now to be noticed an affirmance may still be had. In the application were the following questions and answers: "Has the party had, during the last ten years, any sickness or disease? if so, state particulars, and the name of the physician or physicians who prescribed, or who were consulted." A. "Nine years ago had an attack of typhoid fever." Q. "Have you employe or consulted any physicians for yourself or your family? if so, give name or names and residence." A. "Dr. Paine, Putnam, Conn., nine years ago; he is now dead." Annexed to the application was an agreement, signed by the plaintiff and her husband, in which it was declared that the answers contained in the application "are warranted to be full, correct, and true, and that no circumstance is concealed or withheld in relation to the past or present state of his health, etc., which may render an insurance on his life more than usually hazardous, VOL. XXV.-24 Dilleber v. Home Life Insurance Company. or which may affect unfavorably his prospects of life, and with which the directors of said company ought to be made acquainted," and in which it was agreed that if the answers were not in all respects full, true and correct, the policy should be void. It was proved beyond question that in August, 1866, at Binghamton, the assured had an attack of spitting blood, and that a doctor was called, and visited and prescribed for him twice. Dr. Clark, of Niagara Falls, was called as a witness by defendant, and testified that he knew the assured at that place in June and July. 1867, that he was attending plaintiff who was sick, and that from June 16th to July 3d he also attended the assured daily, and prescribed for him. But the plaintiff testified that she was there, that she was sick, and that Dr. Clark attended her; that the assured was not sick, and that she never heard that Dr. Clark examined him. There were two other physicians called by the defendant who had attended the assured, but their attendance was after the date of the policy. Upon this evidence can it be held as matter of law that there was a breach of warranty in the answers in reference to the physicians? The answers were literally true. Dr. Paine had been his physician about the time mentioned, in a serious and protracted illness, and he was dead. It was not said that he had had no other physician, and if a fuller and more precise answer was desired, the defendant should have exacted it. It was full and complete so far as it went. Fitch v. Am. Pop. Life Ins. Co., 59 N. Y. 557, 573; s. c., 18 Am. Rep. 372; Edington v. Mut. Life Ins. Co., supra. If a question is not answered, there is no warranty that there is nothing to answer. Liberty Hall v. Ins. Co., 7 Gray, 261. And so in the case of a partial answer, the warranty cannot be extended beyond the answer. Fraud may be predicated upon the suppression of truth, but breach of warranty must be based upon the affirmation of something not true. Here there was no warranty that the answer stated the names of all the physicians whom he had employed or consulted at any time. It is true that in the agreement annexed to the application it is said that the answers are warranted" to be full." But what was intended by these words, and what had the assured a right to suppose was intended by them? Was it intended that the assured should lose the benefit of his policy, after parting with his money, if he omitted, innocently or inadvertently, to give the name of every physician who at any time had been employed for himself or for his family in any illness, |