
    Henry H. Meeder, Respondent, v. Provident Savings Life Assurance Society of New York, Appellant.
    
      Pleading—allegation of performance of the conditions of an insurance policy — proof of a misstatement by the company inducing non-payment of d premium — under a specification of one default others cannot be proved — estoppel.
    
    Where a complaint in an action upon an insurance policy alleges full performance of all the conditions of the policy, and that the insured and the beneficiary “paid or caused to be paid the premiums demanded under said contract to be paid,” proof excusing performance is inadmissible; but this rule does not prevent a plaintiff in such an action, who has alleged full performance of all the conditions of the policy, from proving, in answer to the defense of non-payment of a certain premium, that such non-payment was due to the fact that the defendant erroneously informed the beneficiary of the policy that such premium had been paid.
    "Where the defendant in its answer alleges a forfeiture of the policy by reason of the non-payment of a single specified premium, it cannot, upon the trial, aásert a forfeiture because of the non-payment of subsequent premiums.
    If one person asserts the truth of a fact to another and the latter party acts upon the statement, the party asserting the fact cannot thereafter be heard to say that what he said was untrue when the result of such statement would operate to his own benefit and to the prejudice of the opposite party.
    Appeal by the defendant, the Provident Savings Life Assurance Society of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county ■of New York on the 12th day of July, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order •entered in said clerk’s office on the 2d day of July, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      William T. Gilbert, for the appellant.
    
      Henry W. Jessup, for the respondent.
   McLaughlin, J.:

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 in question ceased to be operative because of the non-payment of the premium which fell due on the 17th of November, 1897, and by reason thereof it elected to and did declare said policy forfeited, and it, therefore, became null and void and of no effect. Upon the -issue thus formed the parties went to trial, at the conclusion of which the court directed a verdict for the plaintiff for the amount claimed in the complaint, after deducting unpaid premiums, and from the judgment thereafter entered the defendant has appealed.

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 amount.” On the following day he received a reply from the defendant, in which it said : In reply to your favor of the 26th inst., with inquiry about policy No. 74,422 on the life of Charles F. W. Dambmann, in which policy you are named as beneficiary, we would advise you that the premium due on the 17th inst. has been paid at this office; ” that after the receipt of this letter he assumed that the premium had been paid and took no further action in reference to the matter; that he did not thereafter receive from the company a notice of any kind as to further premiums being due, and he made no inquiry concerning the same until September 9, 1898, when he wrote to the company asking if there were any premiums due, and in reply received a letter which said that the policy in question “ expired in accordance with its terms because of the non-payment of the premium due on Nov. 17th, 1897. Should it be your desire to again be protected in this manner, we would be pleased to receive an application from Mr. Dambmann upon new papers; ” that he did not reply to this letter, but on the 18th of September, 1899, after the death of Dambmann, he assigned the policy and all his right and claim thereunder to the plaintiff.

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 to. be a modification of the policy in that respect. In defendant’s answer it claimed a forfeiture of the policy by reason of the nonpayment of the November premium alone. This premium the plaintiff alleged had been paid, and the defendant having misled Drentell as to that fact, cannot be heard against him or his assignee to the contrary. It was in legal effect paid, so far as the rights of the parties were concerned. Where one person asserts the truth of a fact to another, and that party acts upon that statement, the party asserting the fact cannot thereafter be heard to say that what he said was untrue, when the result of such statement would be to his own benefit and to the prejudice of the opposite party. (Kenyon v. Knights Templar & Masonic Mutual Aid Assn., 122 N. Y. 247 ; Insurance Company v. Eggleston, 96 U. S. 572 ; Kenyon v. National Life Association, 39 App. Div. 276.) In Kenyon v. Knights Templar & Masonic Mutual Aid Assn, (supra) the head note, which seems to fairly express the opinion of the court, is as follows : “ Any agreement, declaration or course of action on the part of the company which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company. from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.” But it is urged that if it be true that the defendant is estopped from asserting this fact against Drentell,. it may, nevertheless, do so against his assignee, but it must be remembered that Drentell assigned to the plaintiff, which he had a right to do, his right to the policy and all claims thereunder. This placed the plaintiff in precisely the same position in which Drentell was at the time the assignment was made; he stood in his shoes, clothed with the same rights, no more and no less.

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 became null and void by reason of that non-payment, the rights of the parties must be determined upon the issue as thus formed by the pleadings, and for the reason already indicated it appears to us that the policy was not, as against Drentell or his assignee, then terminated. As to payments of premiums thereafter, it will be remembered that the policy provided that the amounts of them were to he determined by the company itself, and it does not appear that any notice stating the amount, or that any premium was due, was given either to Dambmann or Drentell. In the absence of such notice, either to the assured or the beneficiary, the defendant had no power to terminate 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.  