4 N.Y.S. 797 | N.Y. Sup. Ct. | 1889
By the judgment the plaintiff has been permitted to recover' the amount for which a policy of insurance was issued by the defendant upon the life of her husband. She had no knowledge of the existence of this insurance prior to his decease. By the formal language of the policy, $6.47 for one-fourth of the annual premium would become due on the 17th of April, 1886, and notice of that fact was on the 15th of March, 1888, given to the plaintiff’s husband, pursuant to chapter 341 of the Laws of 1876. This notice was not brought to the knowledge or attention of the plaintiff, but before the 30 days expired, and on or about the-25th of March, 1886, the policy was surrendered by the husband, whose life was insured, to the company, for the sum of $525, which was paid to him. This surrender was accepted, and the payment was made upon the authority of a release subscribed with the name of the plaintiff and of her husband; as that, in case she had subscribed her name, was permitted to be done by section 38of chapter 710 of the Laws of 1870. But, as a matter of fact, she neither subscribed nor knew of the release or surrender of the policy, but her name subscribed in this manner was a forgery. Her husband died on the 22d of December, 1886, and after the facts of the issuance of the policy and its surrender in this manner came to her knowledge this action was commenced to revive it as an obligation against the company, and to enforce its payment for her benefit. The court at the trial held that the surrender of the policy was not only without the authority, but a fraud upon the plaintiff, and that she was entitled to have it revived and enforced according to its terms against the defendant. The defense which was mainly relied upon was the omission or failure to pay the premium within the 30 days mentioned in the notice mailed to the plaintiff’s husband on the 15th of March, 1886. But this defense was not sustained by the law, although in ordinary cases such a default would forfeit the policy. Holly v. Insurance Co., 105 N. Y. 437,