68 N.Y.S. 518 | N.Y. App. Div. | 1901
On the l7th of February, 1896, the defendant issued to Charles F. W. Dambmann a policy of insurance upon his life for $3,000, payable in the event of his death to J. M. Drentell. On the 22d of April, 1899, Dambmann died, and thereafter this action was brought hy the assignee of Drentell to recover the amount specified in the policy.
"In the complaint the plaintiff alleged the issuance of the policy $ the death of Dambmann; the filing of the proofs of death; the assignment by Drentell of the policy and all claims thereunder to the plaintiff, and that Dambmann and Drentell complied with all the conditions of said policy on their part, “ and paid or caused to be paid the premiums demanded under said contract to be paid.” The defendant, by its answer, admitted that it issued the policy referred to in the complaint and that the requisite proof of the ■death of Dambmann had been furnished, but it denied substantially all of the other material allegations. It also alleged that the policy
There is little or no dispute between the parties as to the material facts involved. From the record it appears that at the time Dambmann obtained the policy he was indebted to Dren tell in a sum upwards of $8,000, which indebtedness continued down to and existed at the time of Dambmann’s death, and for the purpose of securing the payment of this indebtedness the policy was taken out. By- its terms the premiums were to be paid quarterly on the 17th day of February, May, August and November. It was in form for one year, but contained a' provision that “ upon the payment, on or before the seventeenth day of February, May, August and November, in each succeeding policy year of the quarterly renewal premium, for each one thousand dollars assured hereunder, according to the schedule rates of the Society, less the dividends awarded hereon, the Society will renew and will extend the term of the above contract of insurance for another year and. to the next succeeding anniversary of its date during the lifetime of the insured.”
Drentell testified that, in July, 1897, Dambmann went to Nova Scotia; that he knew from previous transactions with the defendant that the premiums upon the policy had been paid up to August of that year; that he had personally paid two premiums and had letters from the defendant (which were' introduced in evidence) showing the receipt of such payments and that it. recognized him as the beneficiary named in the policy; that prior to making such payments he had communicated with the company, and having ascertained that the premiums had not been paid, sent to it the Amount of premiums required ■ under the policy; that on the 26th of November, 1897, he wrote the defendant for a like purpose, as follows: “ .Kindly inform me if the November premium on policy 74,422 on the life of O. F. W. Dambmann has been paid; if not, kindly forward bill to me and I shall send you check for the
It further appeared that the plaintiff, when he took the assignment of Drentell’s claim under the policy, was in possession of substantially all the foregoing facts. The first error assigned by the appellant, as calling for a reversal of the judgment, is that the trial court erred in permitting the plaintiff to introduce evidence excusing the assured or his beneficiary for the non-performance of the conditions of the policy, viz., the payment of the premium falling due November 17, 1897. It contends that inasmuch as the complaint alleged full performance of all of the conditions of the policy, proof excusing performance was inadmissible. This is undoubtedly the general rule, and it is so well settled that the citation of authorities in support of it is unnecessary. But the defendant is not in a position to invoke the application of this rule as to the payment of the premium falling due on November 17, 1897. The letter which it then wrote to Drentell, stating that the premium had been paid, then and thereafter estopped it from claiming any right or benefit by reason of such non-payment. Drentell had the right, upon the receipt of that letter, to assume that that payment had been made, and if it had not, then the statement of the defendant must be held
Finally, it is claimed that the premiums falling due after November 17, 1897, were not paid. A sufficient answer to this suggestion appears in defendant’s answer, in that it has not alleged such fact and has not claimed a forfeiture upon that ground, and if it did, it would be difficult to see how such claim would be effective, inasmuch as it took the position that the policy was forfeited by the non-payment of the November premium. Having based its defense to the claim made by the plaintiff upon the fact that the policy
The judgment and order are right and must be affirmed, with costs.
Yaw Brunt, P. J., Rumsey, O’Brien and Hatch, JJ., concurred.
Jndgment and order affirmed, with costs.