Third Department, May, 1909.

[Vol. 132. admission that the defendant at the time of action brought was in possession of the disputed strip, holding in hostility to the plaintiff. It was, therefore, error to grant the nonsuit. The judgment should be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.

All concurred; COCHRANE, J., in result, except CHESTER, J., dissenting in memorandum.

CHESTER, J. (dissenting):

The complaint in this action alleges that the plaintiff is the owner and entitled to the possession of lot No. 76 described on the Warren and Turner map in Watervliet, which lot is described as being twenty-five feet front on Twenty-fourth street and ninety-four feet deep. It is also alleged that prior to the commencement of the action the defendant wrongfully and unlawfully entered upon said parcel of land, claiming title thereto, and tore down the fence erected thereon by the plaintiff, and that the defendant wrongfully and unlawfully withholds possession thereof from the plaintiff, and that the plaintiff and her grantors have been in possession of said land under a claim of title and ownership for more than twenty years. She asks for judgment that she be adjudged to be the owner of the land and entitled to have immediate possession thereof. It was clearly shown that the fence which was torn down was not on any part of lot No. 76, and it was not shown that the defendant was in occupation and possession of any part of such lot at the time of the commencement of the action. The fact clearly appears that the disputed strip of land upon which the fence in question was erected was entirely outside the boundaries of lot No. 76 mentioned in the complaint. That being so, the fact that the defendant in her answer brought in an unnecessary allegation with respect to her understanding of the real object of the action, which was to determine the title and ownership of such strip of land, and claimed to own such strip and to maintain a possession thereof, is not sufficient, in my judgment, to save the dismissal of the action.

The trouble with the plaintiff's case is that she has not alleged any cause of action with respect to the disputed strip, and she tried to prove a cause of action entirely outside of that stated in her com

App. Div.]

Third Department, May, 1909.

plaint. The defendant never consented to the trial of any issue outside of that tendered by the complaint, and stood upon her rights when she made her motion for a dismissal. The plaintiff failed entirely to prove the cause of action which she alleged, and for that reason the complaint was properly dismissed. I think the judgment should be affirmed.

Judgment reversed on law and facts, and new trial granted, with costs to appellant to abide event.

MICHAEL LYNCH, Respondent, v. THE GERMANIA LIFE INSURANCE COMPANY, Appellant.

Third Department, May 5, 1909.

wher statements to

Insurance - waiver of warranty - facts raising question for juryevidence - application made to other insurer physician not privileged.

An insurance company cannot assert the breach of a warranty that the insured had never applied for other insurance and been rejected where at the time of issuing the policy it had knowledge of such fact.

Evidence in an action upon a policy of life insurance examined, and held, to raise a question for the jury as to whether the insurer's agent had correctly tran scribed statements of the insured relating to consultations had with physicians prior to her application.

Where in a policy of life insurance the insured made a warranty that she had not applied for other insurance and been rejected, her application made to another company which declined the risk is admissible in an action on the policy. So, too, a physician acting for the other company which declined the risk is a competent witness to show the state of health of the applicant. His testimony is not privileged under section 834 of the Code of Civil Procedure inasmuch as the information was acquired not while rendering professional services to the applicant but while acting as agent for the insurance company.

APPEAL by the defendant, The Germania Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 26th day of October, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 11th day of November, 1908, denying the defendant's motion for a new trial made upon the minutes.

Third Department, May, 1909.

[Vol. 132

Shaw, Bailey & Murphy [II. D. Bailey of counsel], for the appellant.

Lewis E. Griffith, for the respondent.

KELLOGG, J.:

The defendant resists the claim of the plaintiff, the beneficiary in the policy issued upon the life of Mary E. Le Maire, upon the ground of misstatement of facts in the application, which statements were agreed to be warranties upon the faith of which the policy issued. The applicant stated as such warranties: (1) That no application for insurance upon her life had ever been rejected or modified; (2) that she never had been examined for insurance without getting a policy; (3) that she never had had any disease of the heart; (4) that she had not consulted a physician for sixteen years except Dr. McGee in confinement; (5) that no physician had ever given an opinion that she was not safely insurable.

The applicant had made a previous application to the Prudential Life Insurance Company, which had been rejected. But the evidence tends to show that the defendant had some knowledge that she had been previously rejected by some company. If the defendant had knowledge of the facts it cannot rely upon the breach of warranty in that respect. Upon the evidence it is a fair question of fact whether the company relied and acted upon this warranty or whether it was immaterial in view of the knowledge which it had otherwise gained.

January 5, 1906, the application for this policy was made. It appeared that the applicant, in December, 1905, had consulted Dr. Irish and he had been to her house for the purpose of examining her and did treat her as his patient. The plaintiff meets this situation by the testimony of his brother who swears that he happened to go into the room when the sister, the applicant, was being examined for this policy, and that she stated to the examining physician, in answer to the question whether she had consulted a physician or had had any diseases, in substance that she had consulted several physicians for various matters which a woman might be subject to, seeking to raise the inference that the physician did not correctly write her answer.

Without considering the admissibility of this testimony it is suffi

Third Department, May, 1909.

App. Div.] cient to say that it was contradicted by the application itself, and that this evidence and the application raised a question for the jury as to whether the application signed by her gives the correct answer or whether the oral testimony of the brother contains the answer she gave. The evidence tended to show that the witness was interested.

Exhibit No. 4, the application to the Prudential Company upon which it declined the risk, tended to contradict the statement of the applicant as to her consulting a physician, and should have been received in evidence. Dr. Zeh, the physician who examined her in the interest of the Prudential and upon whose recommendation the risk was declined, was a competent witness to show the state of health of the applicant, and his statements to her would tend to show her knowledge of the condition of her health and that she was not insurable. His testimony was not privileged under section 834 of the Code of Civil Procedure. The information he was asked to give was not acquired by him while attending a patient (Meyer v. Knights of Pythias, 178 N. Y. 63), but was obtained for the benefit of the company for which he was acting as agent. (Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13.) It was intended that the information received by him should be communicated to his company to enable it to determine whether the person examined was a proper risk for insurance. The object of the examination was not treatment but to acquire information for the benefit of the company. The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

Third Department, May, 1909.

[Vol. 132.

In the Matter of the Application and Petition of J. EDWARD SIMMONS and Others, Constituting the Board of Water Supply of The City of New York, Respondents, to Acquire Real Estate for and on Behalf of the City of New York under Chapter 724 of the Laws of 1905 and the Acts Amendatory Thereof, in the Town of Olive, Ulster County, N. Y., for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York. (Ashokan Reservoir, Section 2, Parcel No. 45.)

While commissioners appointed to ascertain damages in condemnation proceedings are not at liberty to disregard the evidence of the parties showing the value of lands taken, they may act upon personal knowledge acquired by independent inquiry and are unhampered by technical rules of evidence. Where the lands taken were assessed for taxation at $1,200, an award of $7,750 will not be held inadequate although witnesses produced by the condemnor valued the lands at over $9,000.

APPEAL by Egbert Dederick from so much of an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 29th day of September, 1908, as confirms the first separate report of commissioners of appraisal herein, so far as such report affects the real estate of the appellant.

Harrison T. Slosson and Arthur A. Brown, for the appellant.

Francis K. Pendleton, Corporation Counsel [John J. Linson of counsel], for the respondents.

COCHRANE, J.:

Pursuant to chapter 724 of the Laws of 1905 and the acts amendatory thereof the city of New York for the purpose of providing itself with an additional supply of water has acquired title