
    Patrick McGuire, Respondent, v. Union Mutual Life Insurance Company, Appellant.
    Third Department,
    June 27, 1906.
    Life insurance — exchange of new policy for old under option — when payments on old policy do not bring new policy under non-forfeiture law.
    When one holding a term life insurance policy has an option to exchange it for a straight life insurance policy at a different rate, but without a medical examination, payments made on the old policy do not apply as payments on the new policy, so as to make the latter non-forfeitable, as provided by statute, in case three premiums have been paid. On a failure of the insured to pay three premiums on the new policy it lapses, for the two policies are different, and each is governed by its own terms. .
    
      Appeal by the defendant, the Union Mutual Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 10th day of May, 1905, upon the decision of the court rendered after a trial at the Fulton Trial Term, a jury having been waived.
    This is an appeal by the defendant from a judgment in favor of the plaintiff, upon a trial before the court. One Batcheller took from the defendant March 8,1898, a ten-year term policy for $5,000 on his life, payable to his wife, the annual premium of which was $134.60. The policy provided that while it was in force the insured could exchange it for a policy of like amount upon any plan then issued by the company, except a term policy, by paying the premium and rate called for thereby at the then age of the insured, without medical examination. March 6, 1899, the insured took a regular life policy for like amount, which called for an annual premium of $232, in place of the term policy, and paid only two premiums upon it. March 15, 1901, the company received the note of the insured due July 15, 1901, for the third premium, which provided that if it was not paid at maturity the policy lapses for non-payment. The note was not paid and no other payments were made upon the policy. The insured died February 18, 1904, and the policy was assigned to the plaintiff. The policy provided that “ in case of lapse for nonpayment of premiums after the payment of three full years’ premiums in cash this policy is entitled to the benefit of the Maine ¡N on-forfeiture Law- securing the insurance from the date of tins policy for the term specified in the following table.” The table showed that where three full premiums were paid, the policy remained in force for 5 years and 272 days from its date.
    
      Howard R. Bayne, for the appellant.
    
      Horton D. Wright, for the respondent.
   Kellogg, J.:

The claim of respondent that the two policies constitute a continuing contract, so that the one premium paid under the term policy and the two premiums paid under the life policy make the three annual payments under the latter policy, and extend the insurance by virtue of the Maine Mon-forfeiture Law, cannot be sustained. The policies are different. The rate1 of premium is different, and each was a separate contract in itself. The holder of the term policy, if he desired, by its terms was enabled to obtain other insurance in its place without a medical examination. The other insurance when taken must be governed by the terms of the policy taken. It is not necessary to consider whether the notice required by section 92 of the Insurance Law (Laws of 1892, chap. 690, as amd. by Laws of 1891, chap. 218) was mailed or not, for this action was not brought within one year from the default day as required by that section, and the note given for the premium expressly provided that the policy should lapse for non-payment if it was not paid at maturity.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  