18 N.Y.S. 305 | N.Y. Sup. Ct. | 1892
The plaintiff brings this action as assignee of a policy of insurance, which was issued to one Seth H. Merriman by the defendant on the 26th day of February, 1881. On the last-named day the defendant, in consideration of the sum of $9.25 paid to it by Seth H. Merriman, delivered its policy to the latter on his life, by which, in consideration of such sum and of the annual payment of $6.25 for the next succeeding four years, and thereafter the further sum of $3.25, annually, for five years, together with the payment of mortality assessments according to the charter and by-laws of the defendant, the latter promised to pay to said Merriman in 9 years from the date of said policy, or 90 days after his death, if death occurred prior thereto, to his executors, administrators, or assigns, the sum of $1,000. The insured paid to the defendant all the sums required to be paid by the terms of the policy, including mortality assessments upon said policy from the issuing thereof to the 2d day of January, 1888. A loss, by death, having occurred to the company prior to January 2, 1888, an assessment was duly made upon Merriman and others; and Merriman’s pro rata amount thereof was $1.98. On that day, to-wit, the 2d day of January, 1888, the defendant mailed the printed notice of such death, and of the cause thereof, with such assessment, which notice required the insured to remit to the office of the defendant, by draft, postal order, or check, or pay to its authorized collecting agent, such assessment within 30 days from the date of said notice, and that otherwise the policy would be forfeited. This notice, as the evidence shows, and as the learned referee has found, did not reach the assured until the 7th day of February, 1888, owing to some unexplained derangement of the mail at Hornellsville, N. T. Immediately on the actual receipt of the notice, Merriman sent the proper sum of money for that assessment, and for another one of which he had been notified by mail February 1, 1888. But the defendant refused to receive such payment, and insisted that the policy was forfeited, and that the company was no longer bound by the terms thereof. On the 26th day of January, 1888, the defendant sent to Merriman, by mail, a notice that his annual premium upon the policy of $3.25 would be payable on the 26th day of February, 1888. On the 1st day of February, 1888, the defendant notified Merriman by mail of the death of another member of the association, and of an assessment against him therefor of $1.98, with directions to forward the same as in former notices. The notice of January 2, 1888, to pay the mortuary assessment, contained the statement that the assessment would fall due on the 1st day of February, 1888. The learned referee has held, in a very interesting opinion delivered by him, that the fact that the defendant mailed the second mortuary notice on February 1, 1888, was either
But there is a further question in this case, and that is whether conformity to our statute in relation to service of notices for the payment of premiums is applicable to the payment of mortuary assessments. The statute was undoubtedly passed for the purpose of requiring insurance companies to jog the memory of persons who, in ordinary matters, are conclusively charged with .knowledge of the time when their obligations mature. There seems to have been no further purpose in the enactment than that. The legislature, doubtless for a wise public policy, determined not to permit a forfeiture, although accomplished by means of the terms of the contract, unless within the period named the party should be actually notified of his obligation to pay. But in the case of the mortuary assessments the insured is not charged directly or indirectly with knowledge of them, because from the very nature of the case •they are uncertain both in number and in time. On principle there exists no ■reason why, in the case of mortuary assessments, the insurance company ■should not be driven to common-law proof of notice to the policy-holders of •an assessment before a forfeiture of a policy can be legally claimed. This .position finds some verification in chapter 328 of the Laws of 1885, which