131 N.Y.S. 1087 | N.Y. App. Div. | 1911
Plaintiff is the beneficiary named in a policy of insurance upon the life of her husband, Antonio Liesny, for the sum of $500, to be paid to her upon the death of the.insured.
The material question litigated at the trial was whether this policy had been by the defendant declared forfeited or lapsed on failure to pay the premium payable thereon September 30, 1908, following a notice mailed and addressed by the defendant to the insured, pursuant to the provisions of section 92 of the Insurance Law. (See Gen. Laws, chap. 38 [Laws of 1892, chap: 690], § 92, as amd. by Laws of 1906, chap. 326; now Consol. Laws, chap. 28 [Laws of 1909, chap. 33], § 92.)
In disposing of this appeal, it may be assumed, without directly deciding, that the answer,, as amended by permission of the trial court, sufficiently pleaded this defense.
To establish this defense it was necessary for the defendant to prove not only that the defendant had mailed and addressed to the insured, as the statute requires, the prescribed notice but also failure to pay the premium referred to in the notice. (Fischer v. Metropolitan Life Ins. Co., 37 App. Div. 575, 580; affd., 167 N. Y. 178.) As was said in the case cited: “ It was just as necessary to prove one of those facts as the other, because both of them together were required to constitute a forfeiture.” The defense being an affirmative one, the burden of establishing it by proof óf the facts, upon which it depends, rested upon the defendant. Plaintiff’s counsel requested the court to charge: “ That the non-payment of a premium and the forfeiture of the policy are affirmative defenses that must be established by the defendant by a preponderance of evidence.” The request was denied, aüd exception was duly
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.
