69 N.Y.S. 289 | N.Y. App. Div. | 1901
Upon the 24th of October, 1897, this policy had been in force .more than three months. Te Bow was then entitled to his thirty days’ grace, in which to. pay the premium. The defendant was Unauthorized'to declare the policy forfeited at any time prior to the 23d day of November, 1897. Up to that time, within the terms of the contract, Te. Btow had an undoubted right to pay the premium and maintain the policy in force. The premium was not, however, paid prior to that time nor prior to the death of Te Bow, nor was it tendered. The sole question in' the case seems to be whether the defendant is precluded from asserting the non-payment of said premium as a defense to this action by any act of his own which has contributed to such non-payment.
That Patterson was the general agent of the defendant is not disputed. ' His acts in declaring the' policy forfeited by his letters of October twenty-ninth and of November eighth were concededly in violation of the defendant’s contract. These letters, or at least the letter Of November eighth, was shown to Te Bow while there was still abundant time within the contract for Te Bow to have paid the premium. In connection therewith Te Bow was informed by Gaul that to be: allowed to pay the premium he must furnish a health certificate. The appellant here contends that the decla^ rations of Gaul were incompetent evidence against the company, as he was not authorized as an agent in any way to vary the terms of payment. It seems clear that the declarations of the agent authorized to receive premiums, that such premiums would be received only upon a condition, is the declaration of the company. But those declarations we deem inconsequential in this case. They were simply an amplification of the declarations of Patterson,
These authorities furnish abundant support for the judgment in this action.
All concurred; Chase, J., in result; Edwabds, J., not sitting.
Judgment affirmed, with costs.