
    Henry A. Wahrman, Plaintiff, v. The Equitable Life Assurance Society of the United States, Defendant.
    Supreme Court, Special Term, New York County,
    October 27, 1937.
    
      Alexander & Green, for the defendant.
   McLaughlin (Charles B.), J.

The plaintiff submitted proof to the effect that there were sufficient funds in his bank to pay this check. He claims that the acceptance of checks in tender of payment was conditional, and that the only requisite for complete payment was the fact that there were sufficient funds in his bank to meet it. This court holds that the check was not an absolute payment of the premium and was conditional upon its payment by the plaintiff’s bank. The defendant was justified in standing upon its rights and in declaring the policy lapsed when the check was returned to it unpaid. It had then only a paper that represented no cash and was valueless as payment. The plaintiff also claims that the acceptance on former occasions of a check on the last day of grace constituted a waiver of time for payment, and that, therefore, the tender of cash payment immediately upon notice of dishonor was sufficient performance. The answer to that is that there can be no waiver as to returned checks because all the previous checks were paid when presented. It is also urged that a course of conduct on the part of the defendant in accepting checks after the grace period created an estoppel. The facts negative this claim because there are only three instances of such an action, and it would require more than that number under the circumstances to establish a custom, even if we were to assume, which is very doubtful, that a court of equity could find an estoppel which would in effect hold that the time of payment was not of the essence of the insurance contract. The authorities cited by the plaintiff are not controlling in this State.

Judgment for the defendant.  