| N.Y. App. Div. | Jul 1, 1899
This action was brought upon a policy of life insurance executed by the defendant, insuring the life of William H. Griffin, the husband of the plaintiff. The evidence tended to establish that, after the delivery of the policy to Griffin, he delivered it to the plaintiff as a gift to her, and she thereafter paid all of the premiums falling due which were paid thereon. Griffin died on September 21,1895, and on August 'nineteenth of that year the payment of the premiums, which were due weekly, was six weeks in arrears. On that day the agent of the company called upon the plaintiff for payment of the premiums due, and the plaintiff thereupon .paid two weeks’ premiums, the agent stating to her that he would come again On the following Friday or Monday to collect the balance, but he did not come. On Monday following, which was the 26th day of August, 1895, the plaintiff went to the office of the defendant and requested
At the close of the proof the court ruled that there was no evidence of any assignment of the policy, or of the claim thereunder, to the plaintiff, as averred in the complaint. Thereupon the plaintiff’s counsel asked leave to amend the complaint so as to aver a gift of the policy to the plaintiff. The court granted the motion, and then held that the evidence was insufficient to establish a gift, dismissing the complaint upon both grounds. This ruling was erroneous. The delivery of the policy by the insured to his wife authorized the jury to find both a gift and an assignment of the policy, and that the plaintiff became vested with legal title thereto. (Sheridan v. Mayor, 68 N.Y. 30" court="NY" date_filed="1876-12-22" href="https://app.midpage.ai/document/sheridan-v-mayor-of-new-york-3588808?utm_source=webapp" opinion_id="3588808">68 N. Y. 30; Matter of Babcock & Dunn, Sr., 12 N. Y: St. Repr. 841.) The condition that the policy should not be assigned unless in writing does not affect the question. Failure to comply with'the condition will not defeat the vesting of legal title in the •assignee. (Marcus v. St. Louis Mut. Life Ins. Co., 68 N.Y. 625" court="NY" date_filed="1877-02-13" href="https://app.midpage.ai/document/marcus-v--st-louis-mutual-life-insurance-company-3616965?utm_source=webapp" opinion_id="3616965">68 N. Y. 625.)
The question whether the policy lapsed or became forfeited by reason of the non-payment of premiums, was not passed upon at the trial; but as the question is in the case and likely to be raised upon the new trial, the rule of law relating thereto should be announced for the “subsequent guidance of the court. It is well settled that as the provision for forfeiture is made for the benefit of the defendant it may he waived, either by agreement or by declaration of the party entitled to insist upon the forfeiture, or by such a ■course of dealing with respect thereto as induces an honest belief by the party affected by the forfeiture that it will not be insisted upon. In the present case the jury would have been authorized to find that the defendant did not intend to insist upon a forfeiture by reason of failure to pay the premiums when the same fell due, as it had uniformly accepted the same after such time, and waiver may be predicated of such fact. (Kenyon v. Knights Templar & M.
It follows that the judgment should be reversed -and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.