Opinion
June, 1922.
Present — Blackmar, P.J., Kelly, Jaycox, Kelby and Young, JJ.
Motion for reargument denied. Motion for leave to appeal to the Court of Appeals granted. We do not understand that there is any decision by the Court of Appeals which holds that the statute of the State of New York providing that "all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties" (Ins. Law, § 58) is not to be applied according to its literal meaning. A false representation is not a warranty unless fraudulently made. If fraudulently made it is a warranty, and the policy is void. If false but not fraudulent, the remedy is by rescission. In the case at bar no defense of rescission is tendered in the answer. The jury have found on conflicting evidence that there was no fraud, and hence no warranty. We, therefore, affirmed the judgment for the plaintiff. [See ante, p. 757.] However, it is urged, not only in this case but in others, that the decisions of the Court of Appeals in Stanulevich v. St. Lawrence Life Association ( 228 N.Y. 586) and Bollard v. New York Life Ins. Co. (Id. 521) establish the rule that a false representation although not fraudulent is a warranty. We, therefore, grant leave to appeal to the Court of Appeals, as this case originated in a City Court and no appeal is possible without our consent.