223 A.D. 169 | N.Y. App. Div. | 1928
Judgment was entered in this cause dismissing the complaint after a trial of the issues. The judgment of dismissal was rendered after the court had at first found for the plaintiff, at that time reserving decision on defendant’s motion to set aside the finding and for a dismissal.
Apart from the question as to whether or not the court, sitting under a stipulation that it might direct a verdict as though a jury were actually present, may set -aside its own finding, we believe that the judgment was erroneous on the merits. The rule is that where the court sits alone in a common-law action and makes formal findings in a decision, it has no power to set aside such decision on grounds on which it" might set aside a verdict after a jury trial. (Swenson v. Trowbridge, 195 App. Div. 310.) The rule should not vary where the judgment is directed as though it were a verdict of a jury actually present. Form should not overshadow the apparent limitation of the statute of such power to an actual jury trial. (Civ. Prac. Act, § 549.)
The action is one on a policy of insurance for the amount of an accident indemnity which was issued to the husband of the plaintiff and of which she was the beneficiary. The policy provided that it was issued in consideration of a premium of seventy dollars for the sum of fifteen thousand dollars, and it contained a weekly indemnity of fifty dollars for six months from noon of July 22, 1921. It also provided that the policy might be renewed subject
“ No. N. Y. 1169 Attach to your Policy.
“ The Hartford Accident and Indemnity Co.,
“ of Hartford, Conn.
“ Personal Accident Department
“ In consideration of a premium of $70 does hereby continue in force Policy No. DPL-1259 issued to Frederick E. Kadelburg from noon of July 22nd, 1923 for 6 months, subject to all the terms and provisions of said Policy.
“Not valid unless Counter signed by a Duly Authorized Agent of the Company.
“N. R. MORAY
“ Vice-President and General Manager.
Countersigned
“ A. A. Duke, Authorized Agent.”
The broker Lowenstein kept this receipt continuously after defendant sent it to him until he redelivered it to defendant insurance company after the death of the insured. The assured himself never had personal possession of the renewal receipt, but it cannot be doubted that he had the right of possession.
The plaintiff contends that defendant’s previously waived prompt payments of the premiums constitute an extension of credit for the last renewal which kept the policy in force, and that such delivery to plaintiff’s agent, the broker Lowenstein, of the renewal receipt constituted a waiver of the right to have immediate payment of the premium. The postulate is that the course of dealing with the payments of previous premiums gave rise to a proper inference that an extension of credit for the last payment
The defendant’s manager admitted on this trial that these receipts were sent-to the broker or agent from whom the business was received. They were not sent to the insured direct. Lowenstein was undoubtedly the assured’s agent. He placed the insurance for him, and was not, according to the testimony of defendant’s manager, an authorized agent for the company. That the renewal insurance was accepted by the assured was shown by Lowenstein’s testimony. He said that he stated to the assured: “ Why don’t you send me a check for these premiums? ” and the assured said: “ I will shortly.” He died before he had done so, but meanwhile no cancellation of the renewal was made by the company. Thus the policy remained in force-by its own terms.
The complaint was not properly dismissed because of faulty pleading, since it was only necessary to allege that the policy was in force, and not that time for payment of premiums had been waived. If the policy was in force because of an extension of credit, the conditions of payment were fully performed. This was held in the Cornell Case (supra), where a complaint of similar averments and tenor was sustained. In any event, no point was raised on the trial as to the sufficiency of the complaint for this proof, and it is futile to suggest it now as an assignment of error for our,review.' - , ,
The order granting defendant’s motion to dismiss the complaint and setting aside the verdict, and the judgment entered thereon, and the order canceling of record the judgment for plaintiff should be reversed, with costs, and the verdict for plaintiff for $18,080 and the judgment entered thereon reinstated. The appeal from the order denying plaintiff’s motion to amend complaint should be dismissed.
Dowling, P. J., Finch, Martin and O’Malley, JJ., concur.
Order and judgment dismissing complaint and the order canceling judgment reversed, with costs, and the verdict for plaintiff and the judgment thereupon entered reinstated. Appeal from order denying motion to amend complaint dismissed.