
    Fannie C. Ryer, as Administratrix, etc., of Benjamin Ryer, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant.
    
      Life insurance policy—when the time of suing thereon expires on Sunday an action may he brought on the next day — a wairerofa condition as to the time of payment of a premium must he pleaded—judicial notice taken of the days of the week.
    
    Where a policy of life insurance provides that no action can be maintained thereon unless commenced within six months after the death of the insured, who died April 37, 1901, and the 37th day of October, 1901, falls on Sunday, an action on the policy, commenced October 38, 1901, is seasonably brought.
    Where the complaint in an action upon a policy of life insurance alleges due performance by the plaintiff of all the terms and conditions of the policy, and fails to allege a waiver by the defendant of any of such terms or conditions, the plaintiff is not entitled to introduce evidence establishing a waiver by the defendant of a condition of the policy relative to the effect of a failure to pay the premiums at the time specified in the policy.
    Judicial notice will be taken that a certain day of a month falls on Sunday.
    Appeal by the defendant, The Prudential Insurance Company of .L America, from a judgment of the City Court of the city of Yonkers in favor of the plaintiff, entered in the office of the clerk of the said court on the 17th day of September, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of September, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Ralph Earl Prime, Jr., for the appellant.
    
      F. X. Donoghue, for the respondent.
   Hooker, J.:

The defendant appeals from a judgment in plaintiff’s favor and from an order denying defendant’s motion for a new trial. The action was by the plaintiff as- administratrix of the estate of her husband against the defendant, based upon a policy of 'life insurance issued to the husband in his lifetime by the defendant insurance company, payable to Iris estate. The defendant strongly insists on this appeal that the judgment should be reversed because the action was not commenced within the six months’ limitation provided for in the policy of insurance. One of the provisions of the policy was that no suit or action at law or in equity should be maintained unless commenced within six months after the decease of the person insured under the policy, and it was expressly agreed therein that should such suit or action be commenced after the expiration of said six months, the lapse of time should be deemed conclusive evidence against the validity of the claim, any statute of limitation to the contrary notwithstanding. It is clear from the record that the insured died on the 27th day of April, 1901, and that the action was commenced on the twenty-eighth day of October in the same year. The 27th day of October, 1901, fell on Sunday, and of this fact the court will take judicial notice, although there was no proof in the record upon that subject.; The plaintiff had the, whole of Monday, the twenty-eighth day of October, in which to commence her action, and it was, therefore, begun in time. (Salter v. Burt, 20 Wend. 205; Commercial Bank of Kentucky v. Varnum, 49 N. Y. 269, 279; Griggs v. Guinn, 29 Abb. N. C. 146, note 1.) While the Statutory Construction Law cannot be held in every case to be applicable to the construction of contracts, yet it is instructive to refer to section 27 of that act (Laws of 1892, chap. 677, as amd. by Laws of 1894, chap. 447), treating of time, which provides the same rule for the construction of statutes as the cases just cited do in respect to contracts.

Several questions were presented by the warranties made by the insured in the- original application and upon the application for the revival of his insurance, but these were all questions of fact upon which there was abundant evidence to sustain the jury’s findings, and no error was presented in respect thereto.

A more serious question arises, however, upon the exceptions of the defendant to the ruling of the trial court in receiving evidence of waiver by the defendant of default in payment of premiums due. The policy which had been introduced in evidence provided that the weekly premium stated in the schedule should be paid to the company or its agent every Monday during the continuance of the contract, and that the policy should be void if the said weekly premium should not be paid according to the terms of the contract. The complaint distinctly alleged that the deceased duly complied with all the provisions and agreements contained in the policy to be kept and performed by him, and the answer specifically denied that allegation of the complaint. It was stipulated upon the trial that the payments of premium were regularly made after the issuance of the policy up to the 4th day of February, 1901. Upon direct examination the plaintiff was asked when the payment which was due February eleventh was actually made. To this question the defendant objected on the ground that the evidence was inadmissible under the allegations of the complaint, which alleged due performance by the plaintiff of all the terms of the conditions of the policy, and fails to allege a waiver by defendant of any of its terms or conditions. Objection .was further made to any evidence of the payments of premiums at times other than the exact date specified in the policy and the acceptance thereof by the defendant upon the same grounds. The court ruled that as the premiums had been regularly paid for a period of nearly seven years, to the fourth of February, if a few payments were made after the time specified in the policy, and were received .by the company, the contract was substantially complied with; that the non-compliance was too trifling to be considered a non-performance, and that the defendant waived any irregularity as to the payments by accepting the money after the default. It was distinctly provided in the contract of insurance that the same should be void if the payments were not made upon the premium days, and as to any payment made after these days, accepted by the company, the only proper construction is that the company waived the provisions of the policy. The rule, however, is well settled that under allegations of performance proof o-f waiver of the exact terms of the contract is not admissible and that the trial should be com ducted and conclusions reached according to the pleadings and the proofs. This is the rule laid down in Beecher v. Schuback (1 App. Div. 359; affd. on opinion below, 158 N. Y. 687); and under the authority of that case it must be held that the court erred in admitting evidence of deferred payments and waiver by the defendant in accepting them.

In view of this technical defense, to which the defendant has • resorted, this would seem to be a case where the court, in the exercise of its discretion, should permit the plaintiff to amend her complaint without the imposition of any terms.

The judgment and order should be reversed and a new trial ordered, costs to abide the event.

Goodrich, P. J., Bartlett and Woodward, JJ., concurred.

judgment and order reversed and ' new trial granted, costs to abide the event.  