
    William H. Baldwin, Jr., and Others, Plaintiffs, v. Provident Savings Life Assurance Society of New York, Defendant.
    
      Life insurance—forfeiture for non-payment of a mortuary premium due in the month in which the death occurs — under what policy a notice need not be given to the assured before forfeiture.
    
    Where a life insurance policy for one month provides for its renewal for each successive month upon payment of the premiums therein provided to he paid, viz., on the first day of each year from the date of the policy of an expense premium, and also for the payment, within thirty days after.notice of a demand therefor, of mortuary premiums, the timely payment of the expense premium does not operate to continue the policy in force to the end of a month in which a mortuary premium (not paid) falls due. The payment of such mortuary premium is not simply a condition precedent to the right to renew the policy for the succeeding month.
    Such a policy falls within the exception stated in section 92 of the Insurance Law (2 R. S. [9th ed.] 1174), requiring that a notice be given to the insured before his policy can be forfeited.
    Submission of a controversy upon an agreed statement’ of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Charles A. Boston, for the plaintiffs.
    
      William T. Gilbert, for the defendant.
   Goodrich, P. J. :

The plaintiffs are assignees of a policy of insurance issued by the defendant, dated March ’ 30, 1885, on the life of 'L. J. Smith, by the terms of which the defendant promised to pay the amount insured within ninety days after satisfactory proof of death, provided the same should occur before April 30, 1885, and to renew and extend the insurance during each successive month upon condition that the assured pay;; the mortuary premiums therein provided for in the manner and at the times therein stipulated, and also, on the first day of each year from the date of the policy, pay fifteen dollars per year for the expense charges of the society, and that all the conditions, stipulations and agreements upon which the policy was issued should be faithfully observed and fully carried out. Mortuary premiums were to be paid within thirty days after notice that they were called for was given.

By the language of the application and the policy they are to. be construed together, except, possibly,'where the.policy is inconsistent with the application. " The application provides that if there was any omission to make any payment, as required by the conditions of the policy, the policy should become null and void. The policy provided, as we have seen, for the payment of- the mortuary premiums within thirty days after notice that they were called for was given, so that there is no inconsistency in this respect between the application and the policy. The fifteen dollars annual expense premium was regularly paid by the assured up to and including March 30, 1895. The mortuary premitimsialling due on or before January 30, 1895, were duly paid. On January ninth the defendant sent out its annual call for ¡a premium to be paid on or before February ninth. The assured died on February nineteenth without having paid the mortuary premium last mentioned.

■ The plaintiffs contend that by the payment of the annual expense charge on January- 30,1895, and all mortuary premiums which were called for up to that date, -the policy was ipso facto continued in force till the end of February; that it could not be subject to forfeiture by reason of the non-payment of the mortuary premiums which fell due'in February, and that the mortuary premiums which fell due in any month were simply a condition precedent to the renewal for the subsequent month, but could not defeat the continuance of the policy during a current month.

While the law abhors a forfeiture of a policy of insurance upon any technical grounds, there is abundant authority for the proposition stated by Ruger, Ch. J., in Dwight v. Germania Life Ins. Co. (103 N. Y. 346):

“ Parties to an insurance contract have the right to insert such lawful stipulations and conditions therein as they may mutally agree upon, or which they may consider necessary and proper to protect their interests, and which, when made, must be construed and enforced like all other contracts according to the expressed understanding and intent of the parties making them. If an insurance policy in plain and unambiguous language makes the observance of an apparently immaterial requirement the condition of a valid contract, neither courts nor juries have the right to disregard it or to construct, by implication or otherwise, a new contract in the place of that deliberately made by the parties. (Appleby v. Astor Fire Ins. Co., 54 N. Y. 253; Foot v. Ætna, Ins. Co., 61 id. 571; Graham v. Fireman’s Ins. Co., 87 id. 69; Armour v. Transatlantic Fire Ins. Co., supra.)”

This, of course, does not relate to cases where there is a doubt or ambiguity. In such a case the policy is to be construed most strongly against the insurer, on the ground that he is supposed to have chosen his own language to express the terms of the contract, and where there is a doubt the construction will be adopted which is most favorable to the promisee. (Darrow v. Family Fund Society, 116 N. Y. 544.) But we see in the present policy no ambiguity or doubt. It clearly provides that the payment of the mortuary' premiums, as they fall due, shall be the condition upon which the policy shall continue to exist. The policy dies just as certainly, if a mortuary premium is not paid, as it does if the annual expense premium is not paid. The one is no more necessary to the life of the contract than the other. This is the clear agreement of the parties. It is our simple duty to declare the contract into which the parties entered, even if that works a forfeiture. The evidence presents a failure of the assured to comply with the reasonable requirements of his contract as. expressed in the policy. He did not fulfill its conditions and, therefore, the contract was ended.

The plaintiffs’ counsel also contends that the notice or call for the payment of the mortuary premiums, is not a sufficient compliance with section 92 of the Insurance Law (2 R. S. [9th ed.] 1174), because it does not contain a reference to the right of the assured to a surrender value or paid-up policy. The policy, however, falls within the exception of the section, that is, it is either a policy issued upon the payment of a monthly premium, or it is a term insurance contract for a year or less, in which case no notice is necessary ; and in this view we are sustained by the- decision of the Court of Appeals in McDougall v. Provident Savings Life Assurance Society (135 N. Y. 551, 556).

■ Judgment should be entered for the defendant.

All concurred.

Judgment for defendant on agreed statement of facts, with costs.  