35 A.D. 82 | N.Y. App. Div. | 1898
Each policy of insurance held by the plaintiff provided that “if any premium on this policy shall be in arrears more than four weeks, this policy shall thereupon become void.” The premiums were payable weekly. The defendant lapsed the policies and gave the plaintiff notice to that effect, alleging arrears in payment of premiums for more than four weeks. The plaintiff here seeks to recover damages for such lapsing of the policies, alleging that she had fully paid the premiums.
The issue was whether, when the defendant lapsed the policies, the payment of the premiums was four weeks in arrears, and the jury determined that issue in plaintiff’s favor. The verdict of the jury is not without evidence in its support, and although we may think that the weight of the whole evidence is with the defendant, yet we are inclined to think that substantial justice has'been done, and we, therefore, decline to set the verdict aside. (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 632.)
The plaintiff was permitted to testify that she had on previous occasions been permitted by defendant’s agents to pay her premiums after they had been due more than four weeks. The trial court, in submitting the case to the jury, in effect charged them that under the evidence she cordd not recover upon that ground, and, therefore, that the testimony was immaterial. The case, in fact, turned upon the question of payment on February 29,1896, within and not beyond the four weeks We think the result would have been the same if the testimony had been excluded, and that the defendant was not prejudiced by it.
We think, however, that the amount of the verdict, $249.62,
All concurred.
Judgment and order reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulates within twenty days to reduce the verdict to $178.30, and, if the plaintiff so stipulates, then the judgment as so modified affirmed, without costs to either party.