
    Margaret Tobin, Plaintiff, v. The Workingmen’s Co-operative Association of the United Insurance League of New York City, Defendant.
    
      Insurance policy — limitation as to the time within which an action may be brought thereon—waiver thereof by the company.
    
    Evidence given in an action upon a policy of life insurance, containing a clause requiring an action thereon to he brought within six months from the time when the right of action accrued, to the effect that the plaintiff, at the request of the defendant, delivered to it the policy and premium book shortly after the insured’s death, and that before the six months had expired the plaintiff and her attorney, who had no knowledge of the limitation clause in the policy, demanded the return of the policy and premium book and that such demand was refused, raises a question of fact as to the waiver of the limitation clause-contained in the policy, and renders it improper for the court to hold as a matter of .law that the plaintiff was not entitled to recover because the action was not commenced until after the expiration of the six months.
    Motion by the plaintiff, Margaret Tobin, for. a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term, .
    
      William Riley, for the plaintiff.
    
      I. J. Beaudrias, for the defendant.
   Sewell, J.:

This action is to recover $500, the amount of an insurance policy or certificate issued by the defendant upon the life of James Morrissey, a nephew of the plaintiff. The policy in question contained the following provision: “ No suit shall be brought or action commenced against said Association under this certificate until thirty days shall have expired after filing proofs in its chief office, nor after six months from the time when the right of action shall accrue.”

James Morrissey died January 21, 1899. The plaintiff informed the defendant of Morrissey’s death by letter, and defendant’s secretary replied that the first proceeding was to file with the company the policy and the book in which the defendant’s agent entered the premiums paid. The policy and the books were sent to the defendant February second. Proofs of death were filed on the seventh of February, and on the fourteenth of March the defendant’s secretary wrote to the plaintiff as follows: “We have about completed our investigations of your insurance operations.. It is evident that your claim for insurance upon the life of James Morrissey cannot be recognized. Before taking any further action we will see you at' this office on Monday, March 20, at 10 a. m.”

The plaintiff testified : “ I went down to the company’s office on the 17th of March. And I there again saw Mr. Salisbury. I talked then about payment of this policy on the life of James. He tóld me that, he would not pay me; * * f and then when I was leaving

the office he says to me, ‘ We will pay you,’ he says, ‘ what- you paid in, only twenty cents out of the dollar to the agent that collected it.’ * * * And I told him that I would not take it, and he said he would not pay it, because it was a graveyard insurance. * * * He said further about it; he said he had pretty near all the information he wanted. I did say something about my premium receipt and the old policy, at that time. I asked them of him and he would not give them to me; he said they were in his possession and he would keep them. And I never have had them since.” ' The plaintiff also testified that she could not read, and the evidence of Thomas F. Curran, her attorney, is that he demanded the policy of the defendant before the six months had expired; that it was not returned and that he had no knowledge of the limitation clause in the policy. This action was commenced December 6, 1899. The complaint was dismissed upon motion of counsel for the' defendant at the close of the testimony, and the question is whether or not it was for the court to hold as a matter of law upon the evidence that the plaintiff was not entitled to recover.

This case cannot be distinguished from Dougherty v. Metropolitan life Ins. Co. (3 App. Div. 313), or Sullivan v. Prudential Ins. Co. (63 id. 280), where this court held that the acceptance and retention by the company of the policy and papers were sufficient to raise a question of fact as to the waiver of the limitation provision of the policy. In Dougherty v. Metropolitan Life Ins. Co. (supra) Mr. Justice Hatch said : “Plaintiff was in no position to bring her action until she was possessed of the policy and papers; they were essential in order to prepare her complaint. It would be most reprehensible for defendant to withhold her papers, the evidence of her Tight to prosecute an action, and then insist that she had notice of the rejection of the claim and was absolutely concluded thereby, unless she acted before the end of the six months. Good faith required that her papers be returned as soon as defendant had acted thereon. Returning the policies after this event, and then insisting upon this short Statute of Limitations, ought not to receive favor at the hands of the court. It has too much the ear-marks of an intention to create a condition where the limitation may be availed of.”

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

Goodrich, P. J., Woodward, Hibschbeeg and Jenks, JJ, •concurred.

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