On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Lora, Michels and Larner. The opinion of the court was delivered by Michels, J.A.D.
Defendant The Equitable Life Assurance Society of the United States (Equitable) appeals from a judgment of the Law Division awarding plaintiff Claire Formosa $72,187 under a life insurance policy issued on the life of her husband Daniel J. Formosa (Dr. Formosa), and dismissing its counterclaim for rescission of the policy.
On April 17, 1973 Equitable issued a life insurance policy to Dr. Formosa on the basis of his signed application. The application, which was attached to and formed part of the policy, consisted of two parts. Part 1 of the application was signed by Dr. Formosa on April 2, 1973 and contained the following pertinent statement above his signature:
It is hereby agreed by the undersigned that:
1. The statements and answers in all parts of this application are represented by the undersigned to be true and complete and are made to induce the Equitable to enter into this Agreement and to issue any policy or contract which may be issued upon this application.
Part 2 of the application was signed by Dr. Formosa on February 8, 1973, prior to his signing Part 1, and also contained a clause above his signature, reading:
I represent that the above statements and answers are true and complete. I agree that such statements and answers shall be part of the application for insurance or request for policy change
or reinstatement, as the case may be, and are made to induce the Equitable to issue any policy which may be issued upon the application or to make the policy change or reinstatement.
Part 2 also contained questions and answers concerning Dr. Formosa's health and medical history, of which the following are pertinent to the resolution of this appeal:
6. a. Print name and address of your personal phy-
sician: (If none, so state). [Ans.] V. D'Agati,
b. Date and reason last consulted: [Ans.] 1972
c. What treatment was given or recommended?
7. Have you ever been treated for or ever had any
known indication of: (Circle the applicable item). YES NO
g. Diabetes; thyroid or other endocrine disease
8. Are you now under observation or taking treat-
10. Other than as stated in answers to questions 6-9,
have you within the past 5 years:
a. Consulted or been examined or ...