140 N.Y.S. 167 | N.Y. Sup. Ct. | 1912
The plaintiff is the beneficiary under two policies of life insurance for $10,000 each, issued by the defendant bearing date the 30'th of March, 1903, on the life of her husband, Arden A. Flint, who was accidently killed on the 7th day of March, 1912. Proof of his death was duly given to the defendant as required by the terms of the policies on the 29th day of March, 1912. The policy was never assigned. The premiums upon the policies were paid quarterly, the last premium paid having become due September 30, 1911, and having been paid and accepted by the defendant on or about Hovember 4, 1911. The quarterly premium, $38.00, due on each policy December 30, 1911, had not been paid at the time of the death of the insured. The defendant' declined to pay either of the policies upon the ground that they had each been forfeited for non-payment of such premium due December 30, 1911. The defendant insists that it has complied with the provisions of section 92 of the Insurance Law (Laws of 1909, chap. 3, Consol. Laws, chap. 28), and given the notice therein required and the only question presented for determination is as to the sufficiency of such notice. It is conceded that the notices under each policy were mailed to the insured within the time required by the statute and that the same were found among his papers after his death. The notices given were in the following form:
*675 “ Please advise any change of address “ The Provident Lire and Trust Company or Philadelphia, (Pa.)
“ Please return this notice with remittance to “ William T. Ferris, General Agent “ Rooms 414-417 Singer Building, 149 Broadway, corner Liberty street
“ New York City, December 14, 1911.
“ A. A. Flint
“ 371 Hamilton St.,
“Albany, N. Y.:
“ Take Notice that the Premium noted below will be due on Policy No. -on 12 Mo. 30, 1911, if said Policy be then in force, and that, if not paid, the Policy and all payments thereon will become forfeited and void, except as to the right to a surrender value or paid-up Policy which may be provided in said Policy, or by statute.
“Premium.........$38.60
“ Less Reduction.... $- “Addition . .. $-
“Amount due..... $-
“ William T. Ferris, General Agent.
“ If the distribution of surplus is used as cash or to reduce Premium, sign and return the enclosed receipt.”
In one notice the blank was filled by stating the number of the policy to be 103544 and in the other 103545 which were the numbers of the two policies in question, respectively.
Section 92 above referred to provides that “ No life insurance corporation doing business in this state shall within one year after the default in payment of any premium, installment or interest, declare forfeited, or lapsed, any policy hereafter issued or renewed * * * nor shall any such policy be forfeited or lapsed by reason of non-payment when due of any premium, interest or installment or any portion thereof required by the terms of the policy to be paid, within one year from the failure to pay such premium, interest or installment, unless a written or printed notice stating
In order for the defendant to avail itself of the terms of the statute permitting the forfeiture of a policy issued by it, it must substantially comply with all the terms of the statute (Phelan v. Northwestern Mut. Life Ins. Co., 113 N. Y. 147; Greenwald v. United Life Ins. Assn., 18 Misc. Rep. 91; Schad v. Security Mut. Life Ins. Assn., 11 App. Div. 487; affd. 155 N. Y. 640), but the notice required by the statute need not follow literally the words thereof. McDougall v. Provident S. L. A. Society, 135 N. Y. 551.
The plaintiff insists that nothing can be construed as a part of the notice in question here except what follows the address to the insured and the words “ Take Notice.” If that is the correct rule it eliminates from this notice any direction as to where or to whom to make the remittance. The plaintiff cites no authorities to support that position. I think the entire paper must be taken for what it is worth and considered in its entirety upon the question as to whether
That the general agent at least two months after the premium was due and after the policies had become forfeited, according to the present theory of the defendant, believed that he could induce the insured to continue to pay the premiums thereon, is evidenced by the letter written by such general agent to the insured bearing date February 20, 1912, stating in substance that he had been obliged to return to the company the receipts for. the premiums on the policies due December 30th, but if he would call and pay the amount within a short time he thought he could get the company to accept the amount without requiring a medical examination by his signing the declaration of good health but stating, however, that it would not do to let the matter go much longer, and that in the meantime the policies were not in force.
In McDougall v. Provident Savings L. Assn. Society, 135 N. Y. 551; Nederland Life Insurance Co. v. Meinert, 199 U. S. 171, and Schuell v. Mutual Life Insurance Co., 53 App. Div. 172, cited by the defendant, where the notice was held sufficient, there was a statement in the notice in each case that unless the premium was paid “ by or before the day ” named therein, the forfeiture would take place.
' I think the plaintiff is entitled to judgment for the amount claimed in the policies, with interest, less ¡the unpaid premiums due December 30, 1911, besides costs.
Judgment for plaintiff, with costs.