
    The Equitable Trust Company of New York, Appellant, v. Samuel H. Moss, Respondent.
    First Department,
    March 15, 1912.
    Insurance—life insurance taken out by infant —request to third party to pay premium — action against infant on promise to repay—failure to show that premium was advanced.
    As section 55 of the Insurance Law makes an infant over fifteen years of age competent to contract for life insurance on his own life for his benefit or for that of certain specified relatives, a person who has paid the premium for the infant at his request can recover the amount from the infant the same as he might recover for necessaries furnished.
    But where the infant made a written request to a third person to pay the premium and has in wilting agreed to repay the amount advanced, the third party or his assignee cannot recover on the written instrument itself without alleging and proving that he paid the premium. The request itself is not a contract binding on the infant, but merely evidence which might support an action to recover insurance premiums paid at the request of the infant.
    Appeal by the plaintiff, The Equitable Trust Company of New York, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of June, 1911, affirming a judgment of the Municipal Court of the city of New York in favor of the defendant, entered upon the decision of the court dismissing the complaint.
    
      Herbert G. McLear, for the appellant.
    
      Gustav Goodmann, for the respondent.
   Miller, J.:

The defendant, who was nineteen years of age at the time, applied to the Equitable Life Assurance Society for a policy of insurance on his life for the benefit of his mother, and, in consideration of the policy received by him, signed and delivered to Archibald 0. Haynes, the general agent of the insurance society, the following paper:

“Mr. Archibald C. Haynes,
“No. 25 Broad Street, N. Y.:
“Dear Sir.—I hereby acknowledge having received from Mr. Robert D. Sullivan policy No. 2,043,089, being for $2,500.00 on my life in the Equitable Life Assurance Society. You are authorized and requested to pay the amount of the first premium for me upon said policy in order to place the same in force from this date, and I promise to pay to you or to your order the amount so advanced, to wit, $35.43, as follows: On August 26, 1905.
“And I "hereby acknowledge and declare that this premium, with interest in advance on all deferred payments, has been settled in full in conformity with and in no way contrary to the laws of the State of New York, and that there is no written or verbal agreement of any kind to release me from the above obligation or any part thereof.
“Very truly yours,
“ SAMUEL H. MOSS.”

This action is brought by the plaintiff as assignee of Haynes, and the defense is infancy.

Section 55 of the Insurance Law, in force when the instrument in suit was made (Laws of 1892, chap. 690, as amd. by Laws of 1902, chap. 437), provided as follows: “Inrespect of insurance heretofore or hereafter, by any person not of the full age of twenty-one years but of the age of fifteen years or upwards, effected upon the life of such minor, for the benefit of such minor or for the benefit of the father, mother, husband, wife, brother or sister of such minor, the assured shall not, by reason only of such minority, be deemed incompetent to contract for such insurance, or for the surrender of such insurance, or to give a valid discharge for any benefit accruing, or for money payable under the contract.” This court in the Third Department has held that a contract within section 55 of the Insurance Law is binding, and that the minor cannot rescind and recover back premiums paid. (Hamm v. Prudential Insurance Co., 137 App. Div. 504.)

The statute in express terms provides that the assured shall not by reason of minority “ be deemed incompetent to contract for such insurance.” His contract, therefore, with the insurance company was enforcible, and he thereby incurred the obligation to pay the premium. I am unable to perceive how there can be any distinction between such a contract and one for necessaries By the rules of the common law an infant was not under a disability to contract for necessaries. Now, by the express rule of the statute, he is not under a disability to contract for insurance for the benefit of himself or certain classes of beneficiaries.

One who has paid money at the request of an infant to satisfy a debt contracted by the latter for necessaries may recover from the infant the money paid. (Swift v. Bennett, 10 Cush. 436; Randall v. Sweet, 1 Den. 460.) It can make no difference to the defendant who his creditor is. Indeed, it might be to his advantage to find some one who would discharge his obligation and trust him for the sum advanced.

I entertain no doubt that, if Haynes had paid the premium at the defendant’s request, he or his assignee could maintain an action to recover the sum thus paid. But the difficulty is that a recovery in this case was not sought on that theory. Instead, the suit is strictly on the contract made with Haynes individually to pay him a sum stated in consideration of his implied promise to pay that sum to the insurance company. The plaintiff neither alleged nor attempted to prove the payment of the premium by Haynes, but both in pleading and proof sought to recover strictly upon the contract with him, whereas it was not a binding contract but at the best was only evidence in support of an action to recover money paid at. the request of the defendant to discharge a valid obligation incurred by him.

The determination should be affirmed, with costs.

Ingraham, P. J., McLaughlin, Laughltn and Clarke, JJ., concurred.

Determination affirmed, with costs.  