be provided by law. In any such city, the duties and powers of a board of supervisors may be devolved upon the common council or board of aldermen thereof."

And it was provided in article 10, § 5:

"The Legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election, after the happening of the vacancy."

It was further provided by section 6 of said article 10:

"The political year and legislative term shall begin on the first day of January."

In reference to the provision of the sections last quoted it was held in People ex rel. Howard v. Supervisors of Erie County, 42 App. Div. 510, 59 N. Y. Supp. 476, in a case where the facts were quite similar to those in the present proceedings, that the office of supervisor was an elective office, which must be filled by the qualified voters, and that where during his term of office a supervisor duly elected died, and the common council of the city of Buffalo, acting under the authority conferred by its charter, duly elected a successor in his stead, that such successor could not hold office after the 1st of January next succeeding the next general election, although under the provisions of the charter he would have had the right to hold such office for the balance of the unexpired term of the person in whose stead he was appointed. The Appellate Division of the Fourth Department, the late Justice McLennan writing, said:

"Article 10, § 5, of the Constitution provides as follows: The Legislature shall provide for filling vacancies in office, and, in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.' The Constitution further provides that the political year shall begin on the 1st day of January. We think the two sections above referred to dispose of the question under consideration, and it follows that the section of the charter above quoted is clearly in contravention of the section of the Constitution."

The court further says:

"Article 12, § 3, of the Constitution, emphasizes the contention of the relator. That section, which provides for the election of supervisors and other officials in odd-numbered years, expressly exempts from its terms officials elected to fill vacancies. We think, considering the provisions of the Constitution above quoted, that it is apparent that it was the purpose of the framers of the Constitution to prohibit the Legislature from depriving the electors of a town or ward in a county of the right of having a voice in the selection of its supervisor for a longer term than until the next general election, after which the office of supervisor elected by such electors should become vacant by death, resignation or otherwise. If any other construction be given to the provisions of the Constitution, it would be competent for the Legislature, by prescribing a long term of office for supervisors of counties in case of vacancies, to reorganize such boards by appointment rather than by vote of the electors."

This decision was unanimously affirmed upon the opinion just referred to in the Court of Appeals (160 N. Y. 687, 55 N. E. 1099).

The Constitution of 1894 was amended in article 3, § 26, on November 7, 1899, so as to provide as follows:

"There shall be in each county, except in a county wholly included in a city, a board of supervisors, to be composed of such members and elected in such manner and for such period as is or may be provided by law. In a city which includes an entire county, or two or more entire counties, the powers and duties of a board of supervisors may be devolved upon the municipal assembly, common council, board of aldermen or other legislative body of the city."

As has already been noted, the powers formerly exercised by the board of supervisors in the county of Kings have in fact devolved upon the board of aldermen of the city of New York, and by virtue of the provision last quoted and other provisions of the present Constitution of the state, and by virtue of the inherent powers and duties of the office of alderman of the city of New York as provided in its charter and as preserved and recognized in all of the Constitutions of the state of New York, the alderman must be held to be a constitutional officer elective by the qualified voters of the aldermanic district. See Constitution, art. 3, § 5; article 3, § 26; article 3, § 28; article 10, § 2; article 12, § 3; Rathbone v. Wirth, 6 App. Div. 311, 40 N. Y. Supp. 535; Judge Herrick's opinion, affirmed 150 N. Y. 539, 45 N. E. 15, 34 L. R. A. 408, where it is said:

"Common councils and boards of aldermen of cities are constitutional bodies; that is to say, they are governmental bodies, recognized by the Constitution. See article 3, §§ 26, 28; article 12, § 2. And as referred to and recognized in the Constitution, it must be assumed that they were referred to and recognized with their then existing powers and authority."

Therefore I am forced to the conclusion that the provision in the. Greater New York Charter providing for the filling of a vacancy in the office of alderman by appointment by a majority of the members of the board of aldermen is valid only in so far as the holding of the office by such appointee extends to the 1st day of January next succeeding the appointment, and that in so far as it provides for a longer term for such appointee it contravenes the provision of the Constitution of this state and is in that respect invalid. Had I any doubt as to the correctness of the conclusion just stated I should feel constrained to resolve such doubt in favor of the petitioners in these proceedings, in view of the decision of the Court of Appeals in the case of People ex rel. Wogan v. Rafferty, 208 N. Y. 451, 456, 102 N. E. 582, in which case the Court of Appeals unanimously held:

"Where the Constitution establishes a specified office, or recognizes its existence, and prescribes the manner in which it shall be filled, the Legislature may not transfer any essential function of the office to a different officer chosen in a different manner. Warner v. People, 2 Denio, 271, 272, 281 [43 Am. Dec. 740]. The authority of the Legislature to regulate the duties of constitutional officers to some extent has frequently been recognized by the courts, but not to the extent of depriving them of a substantial attribute of the office. As was said by Chancellor Walworth in the case cited: 'When the Legislature, as in this case, assumes the power to take from a constitutional officer the substance of the office itself, and to transfer it to another who is to be appointed in a different manner and to hold the office by a different tenure than that which was provided for by the Constitution, it is not a legitimate exercise of the right to regulate the duties or emoluments of the office, but an infringement upon the constitutional mode of appointment.'"

The application for the peremptory writ in each of these proceedings is therefore granted as a matter of right, and not in the exercise of discretion; but, as the question is novel in so far as it applies to the city of New York, it should be without costs.

(164 App. Div. 645)

RAKOV V. BANKERS' LIFE INS. CO. OF CITY OF NEW YORK.

(No. 270/67.)

(Supreme Court, Appellate Division, Third Department. November 25, 1914.) INSURANCE (§ 665*)-ACTIONS ON POLICIES-EVIDENCE-LIFE INSURANCE— MISREPRESENTATIONS.

In an action upon a life insurance policy, evidence held sufficient to show that representations made by the insured that she had never applied for life insurance without receiving the policy applied for, and that no medical examiner had ever given an unfavorable opinion on her physical condition, were false, and that they were fraudulently made.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 17071728; Dec. Dig. § 665.*]

Howard and Woodward, JJ., dissenting.

Appeal from Trial Term, Onondaga County.

Action by Herman Rakov against the Bankers' Life Insurance Company of the City of New York. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

Transferred from Fourth Department. See 163 App. Div. 937, 148 N. Y. Supp. 1140.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

A. D. Jenney, of Syracuse, for appellant.

Nash, Britcher & Eckel, of Syracuse (John F. Nash, of Syracuse, of counsel), for respondent.

JOHN M. KELLOGG, J. A bare statement of the facts shows the fraudulent nature of the plaintiff's claim. Rachel Rakov, the mother, had a policy of insurance in the Penn Mutual in favor of her daughter, Mrs. Wolson, and on March 27, 1911, obtained a policy in the defendant's company in favor of the plaintiff, her son. An application for insurance was made in her name, August 23, 1907, to the Home Life Insurance Company, and was rejected. Another application was made that month to the New York Life Insurance Company, and rejected. In June, 1908, an application for insurance upon her life was made to the Manhattan Life Insurance Company, and was rejected. In 1910, another application was made to the Pittsburgh Life Insurance Company for a policy, and upon examining her the doctor found her condition of health such that he rejected her, never having sent on the application. In the application for the defendant's policy she states that she never had applied to any company for a policy without receiving the policy applied for, and that no medical ex

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

aminer had given an unfavorable opinion on her physical condition with reference to life insurance.

The plaintiff seeks to avoid the effect of these false representations by the testimony of Mrs. Wolson, corroborated in part by her sisters, that the applications upon which no policies were issued were a fraud upon the mother, and that she did not know insurance was being applied for; that this fraud was resorted to, because the mother objected to the bother of having policies upon her life, and was led by her daughter and the agent to believe that the examinations were with reference to the old policy in the Penn Life. The agent and the physician concerned with each application swear to facts showing that she had knowledge that she was making application for insurance at the time. The evidence of Mrs. Wolson directly contradicts the testimony of the physician and the agent, and her evidence is improbable upon its face. Clearly the mother did not object to the bother of having a policy when the plaintiff obtained the policy in question. There seems to have been no discussion or trouble in that respect. The statement that the mother did not know that the policies were being applie ́ ́ɔr is evidently false. The mother died within a year after the policy was taken. It is evident the application for the policy in suit was intended as a fraud upon the insurance company, and that the attempted fraud is being sustained by deliberate false swearing. The evidence shows clearly that the statements in the application to the defendant's company that the applicant had not applied for a policy which she did not receive, and no medical examiner had given an unfavorable opinion of her physical condition with reference to life insurance, were false to the knowledge of the applicant, and were intended as a fraud upon the company. The judgment should therefore be reversed, as against the evidence.

It is urged, however, that two juries have been deceived by this perjured testimony, and that therefore the fraud, based upon it, should stand. I know of no such rule. The courts are remiss in their duty if a judgment is permitted to stand which rests solely upon perjured testimony. The fraud upon the court is no less a fraud because it has been perpetrated one or two times before.

The question seriously litigated was whether Mrs. Rakov made the prior applications, other than to the Penn Mutual, or whether they were fraudulently made by Mrs. Wolson, without her knowledge or consent, in the belief that the examinations were with reference to the old policy in the Penn Mutual; the court holding, in substance, if Mrs. Wolson's version of the transaction was true, that Mrs. Rakov had not made the applications. The defendant requested the court to charge that if Mrs. Rakov applied to another or other insurance companies, societies, or agents for life insurance, and did not receive the policy applied for from such other insurance company, society, or agent prior to her application for the policy in suit, the jury must find for the defendant. There was no pretense that Mrs. Rakov had forgotten any application made by her. The position taken by the defense was that she had not made the applications. I think, under the circumstances, the defendant was entitled to this charge, with such

modifications as the circumstances made necessary, and that its refusal

was error.

I favor a reversal of the judgment, and a new trial, with costs to the appellant to abide the event.

Judgment and order reversed on law and facts, and new trial granted, with costs to appellant to abide event. The following findings of fact are disapproved of: That Rachel Rakov never had applied to any company for a policy of insurance without receiving the policy applied for; that a medical examiner had not given an unfavorable opinion of her physical condition; and that her representations in those respects were not fraudulently made. All concur (SMITH, P. J., in memorandum), except HOWARD and WOODWARD, JJ., who dissent.

SMITH, P. J. (concurring). A misrepresentation of a material fact vitiates the policy, whether or not knowingly made. Kasprzyk v. Metropolitan Life Ins. Co., 79 Misc. Rep. 263, 140 N. Y. Supp. 211. In Stapleton National Bank v. U. S. Fidelity & Guaranty Co., in the Second Department (131 App. Div. 157, 115 N. Y. Supp. 372), the binote in part reads:

"There is an implied condition in a contract of insurance of the truth of all representations of the insured material to the risk, on the faith of which the contract is made, even though they be dehors the policy. Hence a false statement may be pleaded as a breach of a condition of the policy without an allegation that it was made fraudulently or by mutual mistake."

See, also, Armour v. Transatlantic Fire Ins. Co., 90 N. Y. 450, 456. There were two representations made: First, that the insured had never applied to any company for insurance without receiving the policy applied for; second, that no medical examiner had given an unfavorable opinion of the physical condition of the insured with reference to life insurance. It is claimed, inasmuch as the applications for life insurance made prior thereto, and rejected, had been made without the knowledge or authority of the insured, that the question was truthfully answered that the insured herself had not made such application: This seems to me too narrow an interpretation of the question asked. In view of the information sought, and of the purpose for which it was sought, when an application was made for her and rejected, her answer in the negative to the question asked would seem to me to be a misrepresentation of fact, which, though innocently made, would void the policy under the authorities cited. Assume for the argument, however, that such reasoning is good as to the first question asked, how can we escape the fact of misrepresentation as to the second question asked, to wit, whether any medical examiner had given an unfavorable opinion of her physical condition with reference to life insurance? Four applications had been made and rejected by reason of her physical condition. It must be assumed, in view of the evidence, that they were rejected because of an adverse report given by the medical examiner. That this was a most material fact will hardly be doubted. The question is not confined to an application made by the insured. Upon an application made by any other party, if such an opinion had been rendered by a medical examiner, it would be equally