McQuirk v. Mutual Benefit Life Co. of Hartford — 48 N.Y. St. Rep. 799

Majority

p. 799

Frank McQuirk et al., Resp’ts, v. The Mutual Benefit Life Co. of Hartford, Conn., App’lt.

(Supreme Court, General Term, Third Department,

Filed November 22, 1892.)

Headnote

Evidence—Reg-isteb of baptism.

In an action upon a policy of life insurance the defense was fraudulent misrepresentation in the application's to the age of the insured. On the trial defendant offered in evidence a record of baptism of an alleged granddaughter of the insured, which was ruled out by the court. Held, no error; that the record was not one required by law to be kept, and could only be received in evidence to prove the fact of baptism and its date, and not for the purpose for which it was offered in this case.

Appeal from judgment in favor of plaintiffs.

Cadman & Peek, for app’lt; Cady & Hoysradt (J. Rider Cady, of counsel), for resp’ts.

The plaintiffs bring an action upon a policy of insurance upon the life of one Alice McQuirk. The defendant, among other defenses, asserted that the policy was obtained through misrepresentation and fraud;. that in the written application for the policy the insured was represented as about twelve years younger than she in fact was.

Upon the trial the defendant offered in evidence a record of baptism “as the record of baptism of Alice Boyd, the granddaughter of Alice McQuirk, the insured, on June lltji, 1854.”

It was objected to by the plaintiffs, and ruled out by the court, and that ruling presents the only question argued by the appellant before this court.

Assuming that the record was properly authenticated to be admissible in evidence, of which I have serious doubts, the offer to prove, or purpose for which it was offered, was too broad.

The register was not one required by law to be kept, and it could only'be received in evidence to prove the fact of baptism and its date. Taylors Evidence, 8th ed., § 1778; Kabok v. Phoenix,

p. 800

Mutual Life Ins. Co., 21 St. Rep., 205 ; Sitler v. Gehr, 51 Am., 207-17; Blackburn v. Crawfords, 70 U. S., 175 -89.

I can see no error in the rejection of the baptismal register.

The judgment should be affirmed, with costs.

Mayham, P. J., and Pütham, J., concur.