
    Sabah A. Griffin, Appellant, v. The Prudential Insurance Company of America, Respondent.
    
      Life insurance policy —- delivery, as a gift, of a policy by a husband to his wife who thereafter pays the premiums■—‘a company permitting payments of premiums after the dates fixed therefor is estopped to insist 'upon a forfeiture because of a delay in payment — notice and presumed ratification of the act of an agent.
    
    Evidence that a husband delivered a policy of insurance upon his life to his wife as a gift, and that she thereafter paid all the premiums thereon, is sufficient to warrant a jury in finding both a gift and an assignment of the policy to the wife, vesting her with the legal title thereto, although the policy contained a •provision that it should not be assigned unless in writing.
    
      In an action brought by the wife to recover upon the policy, it appeared that, at a time when six weeks’ premiums were in arrears thereon, she paid two-weeks’ premiums to the agent of the insurer who cklled upon her, the agent stating that he would c'ome again to collect the balance on the following Friday or Monday; that on the agent’s failure to appear, the plaintiff went to the office of the insurer on the following Monday and offered to pay the premiums in arrears, which offer the insurer rejected; that-about a month later the insured died. It also appeared that the plaintiff had defaulted many times in . the payment of premiums, but that the insurer had never before insisted upon a forfeiture.
    
      Held, that the jury would have been authorized to find that the insurer had, by its previous Tiniform acceptance of overdue premiums, waived its right To insist upon a forfeiture because of the failure to pay the premiums when due;
    That the insurer must be assumed to have had notice of and to have ratified the act of its agent in agreeing to call the following Friday or Monday to collect the balance of the premiums, and that such agreement operated to estop the insurer from insisting on the forfeiture.
    Appeal by the plaintiff, Sarah A. Griffin, from a. judgment of the • Supreme Court in favor of the defendant, entered in the office of the clerk of the couuty of Queens on the 10th day of October, 1898, upon the dismissal of the complaint by direction of the court, after a trial before the court and a jury at the Queens County Trial Term.
    
      Bernard J. Isecke, for the appellant.
    
      Thomas F. Magner, for the respondent.
   Hatch, J.:

This action was brought upon a policy of life insurance executed by the defendant, insuring the life of William H. Griffin, the husband of the plaintiff. The evidence tended to establish that, after the delivery of the policy to Griffin, he delivered it to the plaintiff as a gift to her, and she thereafter paid all of the premiums falling due which were paid thereon. Griffin died on September 21,1895, and on August 'nineteenth of that year the payment of the premiums, which were due weekly, was six weeks in arrears. On that day the agent of the company called upon the plaintiff for payment of the premiums due, and the plaintiff thereupon .paid two weeks’ premiums, the agent stating to her that he would come again On the following Friday or Monday to collect the balance, but he did not come. On Monday following, which was the 26th day of August, 1895, the plaintiff went to the office of the defendant and requested to be permitted to pay the amount of the premiums then due upon the policy, and the defendant refused to receive the same. It also appeared that the plaintiff had been in default many times in the payment of premiums upon the policy, but the same had been thereafter accepted by the defendant, and that the forfeiture on account of such failure to pay, for. which the policy provided, had never been insisted upon, and the defendant had always received the payments until the last offer was made.

At the close of the proof the court ruled that there was no evidence of any assignment of the policy, or of the claim thereunder, to the plaintiff, as averred in the complaint. Thereupon the plaintiff’s counsel asked leave to amend the complaint so as to aver a gift of the policy to the plaintiff. The court granted the motion, and then held that the evidence was insufficient to establish a gift, dismissing the complaint upon both grounds. This ruling was erroneous. The delivery of the policy by the insured to his wife authorized the jury to find both a gift and an assignment of the policy, and that the plaintiff became vested with legal title thereto. (Sheridan v. Mayor, 68 N. Y. 30; Matter of Babcock & Dunn, Sr., 12 N. Y: St. Repr. 841.) The condition that the policy should not be assigned unless in writing does not affect the question. Failure to comply with'the condition will not defeat the vesting of legal title in the •assignee. (Marcus v. St. Louis Mut. Life Ins. Co., 68 N. Y. 625.)

The question whether the policy lapsed or became forfeited by reason of the non-payment of premiums, was not passed upon at the trial; but as the question is in the case and likely to be raised upon the new trial, the rule of law relating thereto should be announced for the “subsequent guidance of the court. It is well settled that as the provision for forfeiture is made for the benefit of the defendant it may he waived, either by agreement or by declaration of the party entitled to insist upon the forfeiture, or by such a ■course of dealing with respect thereto as induces an honest belief by the party affected by the forfeiture that it will not be insisted upon. In the present case the jury would have been authorized to find that the defendant did not intend to insist upon a forfeiture by reason of failure to pay the premiums when the same fell due, as it had uniformly accepted the same after such time, and waiver may be predicated of such fact. (Kenyon v. Knights Templar & M. M. A. Assn., 122 N. Y. 247; French v. Row, 77 Hun, 380; Quinn v. Met. Life Ins. Co., 10 App. Div. 483.) When the agent last called he accepted payment of two weeks’ premiums, leaving- • four weeks then in arrears, and agreed to call the- following Friday or Monday and collect the balance. It must be assumed that the . defendant had notice of such fact, and having retained the payment, must also be assumed to have ratified the act. (Quinn v. Met. Life Ins. Co., supra.) The agreement to accept a part, and fixing a day when the balance would be received, had the effect of extending the time of payment, thereby inducing a belief on the part of the plaintiff ■ that she might withhold payment until the time agreed upon. Such'" act upon the part of’the defendant estops it from insisting upon a. forfeiture. (Leslie v. Knickerbocker Life Ins. Co., 63 N. Y. 27.)

It follows that the judgment should be reversed -and a new trial granted, costs to abide the event.

All concurred.

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