
    Rosie Auspitz, as Administratrix of the Goods, Chattels and Credits of Martin W. Auspitz, Deceased, Respondent, v. The Equitable Life Assurance Society of the United States, Appellant.
    (Supreme Court, Appellate Term,
    March, 1909.)
    Insurance — Forfeiture of policy — In general — nonpayment of premiums— necessity of notice for payment of premium.
    Mere proof of nonpayment of premiums when due will not defeat an action upon a policy of life insurance, unless coupled with proof of the service of the notice of forfeiture required by section 92 of the Insurance Law, which provides that no policy shall be forfeited until thirty days after such notice has been mailed to the insured.
    Appeal by the defendant from a judgment of the City Court of the city of Hew York, rendered in favor of the plaintiff.
    Alexander & Green (William Carrell Diamond, of counsel), for appellant.
    Morris Cukor, for respondent.
   MacLean, J.

The plaintiff brought this action to recover the face value, with interest, of a certain policy of insurance issued by the defendant on April 10, 1905, upon the life of plaintiff’s intestate, alleging in her complaint the issuance of the policy and compliance with its conditions. The answer, among other things, admits issuance of the policy, but denies performance of its conditions, and alleges that the premium due April 10, 1908, the death of the assured occurring on the 7th day of June, 1908, was not paid and that the notice required by law was duly given to the assured. “ It is an essential prerequisite for a life insurance company, which seeks to declare forfeited a policy issued by it, to establish that the notice required by this statute (Insurance Law, § 92), has been mailed to the insured’’ (Howell v. John Hancock Mut. Life Ins. Co., 107 App. Div. 200, 202; affd., 186 N. Y. 556); and that fact the defendant herein has not established, for it is obvious that this statute, when imported into the contract, modified its conditions in very material respects. The duration and validity of the policy is not then dependent upon payment of the premium on the day named therein, but upon payment within thirty days after the notice had been given.” Baxter v. Brooklyn Life Ins. Co:, 119 N. Y. 450, 455. Furthermore, the defendant did not establish that the premium, alleged to be due on April 10, 1908, had not been paid; nor may it be determined, except by strained inference, that the plaintiff has conceded that fact in her complaint. “ Proof of payment was not essential to plaintiff’s cause of action, because, under the statute referred to, the fact of nonpayment alone is no bar to her action.” Fischer v. Metropolitan Life Ins. Co., 167 N. Y. 178, 182. Assuming, however, that the fact of nonpayment was inferentially established, that alone, as said, is no bar;'but “ only when there is evidence of nonpayment of premiums, coupled with proof of the service of the statutory notice required by said section of the Insurance Law, can the plaintiff’s cause of action be defeated.” Fischer v. Met. Life Ins. Co., supra, 183. The latter fact was not shown; and, therefore, in view of the evidence, the direction of a verdict in favor of the plaintiff was not erroneous.

Gildersleeve and Dayton, JJ., concur.

Judgment affirmed, with costs.  