
    Jason H. Denison, Appellant, v. The Masons’ Fraternal Accident Association of America, Respondent.
    
      Accident insurance — a reasonable time, beyond that specified, given to bring a suit — a limitation of liability to weekly wages held inapplicable — deposit, by agreement with the agent, of the premiums in a bank — effect of a decla/ration of forfeiture on a tender and on the right to withdA'aw the deposit,
    
    A certificate of accident insurance provided for an indemnity of twenty-five dollars per week for fifty-two weeks against loss of time resulting from accidental injury; that legal proceedings to enforce payment thereunder should not be brought until the expiration of three months after receipt by the association of satisfactory proofs of loss, and that no suit should be maintained upon the certificate unless brought within one year from the date of the alleged accident.
    
      Held, in a case in which the disability continued so long that the proofs of loss could not be furnished and the three months expire before the expiration of the year, that the certificate holder was entitled to a reasonable time after the expiration of three months from the furnishing of the proofs of loss within which to commence an action upon the certificate;
    
      That a delay of seventeen days after the expiration of three months from the ' time of furnishing the proofs of loss was not unreasonable.
    A provision in such a certificate that “ in no casé shall the weekly indemnity ■ exceed the weekly salary of the insured,” when construed in connection with another provision of the policy which provides, “ This certificate does not cover accidents or injuries to persons who have ceased to follow any regular occupation, except such persons as are insured as prefemd,” must be deemed to refer only to those persons insured who are receiving a weekly salary and does not limit a recovery by one who is insured in the preferred class as a retired farmer.
    In an action brought to recover upon such a certificate it appeared that the plaintiff, before starting on a journey in February, 1897, entered into an arrangement with the defendant’s agent and the cashier of a bank by which the plaintiff agreed to deposit in the bank a certain sum of money for the purpose of paying the dues on the certificate during his absence, and by which the agent agreed to collect the dues at said bank. The agent collected at the bank the dues which became due April 1, 1897, and July 1, 1897, pursuant to the agreement. In August, 1897, he was succeeded by a new agent who, when informed of the arrangement for the payment of the dues, assented thereto. About October 1, 1897, when the next quarterly dues became due, the new agent bought a draft at the bank for remittance to the defendant, and upon his attention being called by the cashier to the fact that he had not included the plaintiff’s dues, he stated that he had forgotten them but would include them later with others. October twenty-fifth the' plaintiff met with an accident, and, notice thereof having been given to the defendant, it asserted that the certificate had been forfeited because of the failure to pay the October dues.
    
      Held; that the declaration of forfeiture was wrongful and excused the plaintiff from the necessity of making a formal tender of the quarterly dues to the defendant or leaving the amount of such dues on deposit with the bank;
    That the fact that the plaintiff, after notice of the alleged forfeiture, withdrew his entire deposit from the bank and waited over a year thereafter before bringing an action upon the certificate, did not deprive him of his right to recover thereon.
    Appeal by the plaintiff, Jason H. Denison, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 26th day of September, 1900, upon the dismissal of the complaint by direction ■of the court after a trial at the St. Lawrence Trial Term.
    The action was brought to recover the sum of $1,175 for forty-seven weeks’ total disability sustained by the plaintiff by reason of an accident occurring upon the 25th of October, 1897, against which the plaintiff claims to have been insured by the certificate in suit.
    
      Upon October 1, 1894, the' defendant issued to the plaintiff its; certificate No. 47,464, series E, form F, preferred class, whereby ■ among other things the defendant insured the plaintiff against personal bodily injury effected through external, violent and accidental means, in the sum of twenty-five dollars a week "against loss of time, not exceeding fifty-two weeks, resulting from bodily injuries which, should, independent of all other causes, immediately, wholly and continuously disable him from transacting any and every kind of business pertaining to his occupation. The plaintiff was insured as; a retired farmer. In February, 1897, the. plaintiff left Augusta for California and.before leaving he entered into an agreement with W. H. H. Coolidge, the agent of the defendant at Augusta, at that time, whereby the plaintiff should deposit, in the Augusta bank the; sum of thirty-five dollars for the purpose . of paying the quarterly dues of the plaintiff upon his certificate during the plaintiff’s; absence from Augusta. The said agent on the other hand agreed, that he would collect the same at said bank. The agreement was. made in the presence of the cashier of the bank, who assented thereto. The said agent made the collection of the quarterly dues of four dollars upon April first and July first, pursuant to the agreement. In August the said Coolidge ceased to be the agent of the-company and was succeeded by one McComber, to whom Coolidge-told the agreement and he assented thereto, in the presence off the cashier of the bank, who also assented thereto. It was the-custom of Coolidge and afterwards of McComber .to remit their quarterly collections by buying drafts at the bank where the plaintiff had deposited said moneys. About October first McComber called at the bank and bought a draft for remittance to defendant-At that time his attention was called by the cashier of the bank to-the fact that he had not included the plaintiff’s dues. McComber then stated that he had forgotten them, but would include them later with others. On October 25, 1897, the plaintiff met with the accident which he claims has disabled him for forty-seven consecutive weeks. Upon November 1, 1897, notice of the accident was, given to defendant by the plaintiff’s sister. On November .8,1897, the defendant wrote to the plaintiff’s sister acknowledging the receipt, of her notice of the accident on November first, but asserting that, plaintiff had not paid his October assessment and was not in good standing at the time of the accident and not entitled to indemnity. Thereafter, and about December eighth, the plaintiff returned to Augusta and withdrew from the bank all the moneys which he had on deposit. On September 19,1898, the plaintiff made proof of his. claim against the defendant and mailed the same to defendant,. Arbitration was duly demanded under the policy and was refused,, and thereafter, on January 7,1899, this action was brought. Further facts appear in the opinion.
    
      Watson B. Berry and V. P. Abbott, for the appellant.
    
      George H. Bowers, for the respondent.
   Smith, J. :

Three objections are urged by the defendant to the plaintiff’s-recovery : First, that the action was not begun in time. Second,, that the plaintiff was not entitled to recover because he was not in receipt of any weekly salary. Third, that the certificate was not in life at the date of the accident.

The first objection is based upon a clause in the certificate providing that no suit shall be brought unless brought within one. year from the date of the alleged accident. The accident occurred upon October 25, 1897. The action was brought upon January 7,. 1899. This objection, therefore, must prevail unless there be in the certificate some provision modifying or controlling the clause, stated. The provision for indemnity provides for twenty-five dollars a week for fifty-two weeks. Another clause in the certificate, provides that legal proceedings to enforce payment thereunder shall. not be brought until the expiration of three months after receipt by the association of acceptable and satisfactory proofs of loss. Proofs-of loss clearly cannot be furnished until the disability has ceased and until fifty-two weeks have passed, if it shall continue for that time. If the disability continue then for fifty-two weeks and the-proofs are then submitted, the action cannot be brought within fifteen months from the happening of the accident. . As this contingency is contemplated by the contract of insurance, the year limitation Within which the action can be commenced must refer only to those cases in which the disability has ceased within sufficient time so that the proofs of loss may be furnished and a reasonable time remain after the three months have passed before the expiration of the year. If, however, the disability shall continué so long that the proofs of loss cannot be furnished and the three months expire before the expiration of the year, the law will still give to the plaintiff á reasonable time after the expiration of the- three months from the furnishing of the proofs of loss within which to commence the action. The three months in the case at bar expired upon the nineteenth day of December, and upon the fifth, of January the summons Was issued and upon the seventh served. We think, under the circumstances of this case, that the delay in the commencement of the action was not unreasonable and that the plaintiff complied with the fair intendment of the contract.

The defendant’s second objection is based upon the clause in the certificate which provides that “in no case shall the weekly indemnity exceed the weekly salary of the insured.” There is another provision in the policy, however, which reads: “ This certificate does not cover accidents or injuries to persons who have ceased to follow any regular occupation, except such persons as are insured as preferred.” ■ This plaintiff was insured in the preferred class as a retired farmer. That was stated to be his only occupation. It is true that he afterwards stated in his application that the weekly indemnity named did not exceed his salary. That was clearly an inadvertence, however, and in no way misled the defendant. The nature of the contract contemplates the insurance of those who do not receive a weekly salary. That provision in the contract which •limits the recovery to the amount of the weekly salary must then be deemed to refer Only to those persons insured who are receiving a weekly salary and does not limit the right of recovery of one who is insured without occupation in the preferred class.

The third objection urged by the defendant is the one upon which the learned trial justice seems to have based his order dismissing the plaintiff’s complaint; The agent Ooolidge had no office for the transaction of his business. The premiums had been theretofore paid to him as he was found upon the streets. We have no doubt of his power to agree with the plaintiff that the moneys for the payment of the premiums'should be deposited at the bank for-him and that he would get them at the bank. Upon the first of October, when the premium' became due, the moneys were in fact upon deposit, subject to the order of the company, in strict accordance with the agreement. The plaintiff’s performance then of his part of the agreement was the full equivalent of a legal tender of those moneys. It was in fact a legal tender by reason of the agreement that the moneys should be paid in that manner. This tender was not at that time rejected by the agent, McComber. It was not rejected until the letter of November eighth, declaring forfeited the certificate. Upon the twenty-fifth day of October, then, when this accident occurred, this certificate was in full force, the plaintiff having performed all of his covenants thereunder. A cause of action then arose in the plaintiff’s favor for the weekly indemnity, and is still his, unless forfeited or released by some subsequent act.

The defendant claims such forfeiture in the withdrawal by plaintiff of his deposit in the bank upon December eighth. It is first urged that, if a tender, it should have been kept good. In the case of Te Bow v. Washington Life Ins. Co. (59 App. Div. 310), we have held that where a company wrongfully declared a policy forfeited, an action might be brought thereon without even a tender of the premium. This holding seemed to us to rest upon abundant authority cited in the opinion therein. The letter of November eighth to the plaintiff’s sister constituted a wrongful declaration of forfeiture on defendant’s behalf. If after a wrongful declaration of forfeiture a party is not bound to make a tender in order to maintain an action upon the policy, by parity of reasoning a tender lawfully made in due season, after rejection, need not be kept good, but the premium admitted to be due may be deducted in the judgment from the amount of the policy. (Shaw v. Republic Life Ins. Co., 69 N. Y. 286, 294; Whitehead v. New York Life Ins. Co., 102 id. 143, 157.)

It is further urged in defendant’s behalf that after notice of the claimed forfeiture by the company, the withdrawal of plaintiff’s deposit from the bank on December eighth, and his long silence thereafter, constituted an acquiescence in the claimed forfeiture which bars the plaintiff’s right of action. If, however, we are right • in our conclusion that the plaintiff was not in default upon the twenty-fifth of October, when the accident happened, he had a cause of action which could only be released upon consideration. An intended acquiescence even on the part of the plaintiff in the defend-. ant’s claim of forfeiture would be ineffectual as without consideration. The law reqpiired from him no protest to secure his right of action then vested. With the right then to withdraw his deposit from the bank as a rejected tender, we are unable to find any act of the plaintiff which has in any way released or forfeited his right of action. The complaint was, we think, improperly dismissed. ■

All concurred, except Parker, P. J., and Chase, J., dissenting.

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