21 N.Y.S. 734 | N.Y. Sup. Ct. | 1893
The defendant, by its policy of insurance, on the 4th day of May, 1889, insured the plaintiff against personal bodily injuries which might be received through external, violent, and accidental means, in the sum of $25 per week, for a time not to exceed 52 consecu
The argument made by the learned counsel for the defendant is that the deposit of the letter in the post office at Rochester on the night of August 5th was not a payment, and that the plaintiff was not reinstated to membership in the defendant’s company until the actual receipt of such check, namely, on the 7th day of August, 1889. If this contention be upheld, there can be no recovery in this case, because, under one of the by-laws and regulations of the company to which the plaintiff subscribed, there could be no indemnity obtained against the defendant for injuries or loss of time sustained between the time of the forfeiture and the reinstatement of the member. But we do not deem the position taken by counsel tenable. The letter itself written by the defendant on the 5th day of August, was not produced upon the trial. It had been returned by the plaintiff to the defendant, in pursuance of the latter’s request. Hence, the defendant refusing to produce it, secondary evidence of its contents was given. The substance of the letter, so given by oral testimony, was as follows :
“Your certificate [of such a number] lapsed July 20th; and if you will remit us your check for four dollars, and exchange, we will reinstate you, and carry your policy in force until [some day in September.] ”
We think that the deposit in the post office was in pursuance óf the direction given by the letter, and was an acceptance by the plaintiff of the terms of the proposition made by the defendant for reinstatement. The word “remit” means to send back, .and, in the absence of any specific direction as to the mode of sending the check, there would necessarily be implied a direction to send it in the usual way, namely, by mail. The contract, as contained in this letter, was not that upon the receipt and payment of the check the company would reinstate the plaintiff to membership; but it was that if the plaintiff would remit to