
    Sophia Liesny, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    Fourth Department,
    November 15, 1911.
    Insurance — action on life insurance policy — defenses —failure to pay premiums—burden of proof.
    A life insurance company defending a suit by a beneficiary upon the ground that the policy was forfeited for a failure of the insured to pay premiums is under the burden of showing, not only that it mailed the statutory notice to the insured, but also that he failed to pay the premiums referred to in the notice.
    The failure to pay must be established by the defendant by a preponderance of evidence.
    Appeal by the plaintiff, Sophia Liesny, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 31st day of October, 1910, upon the verdict of a jury, and also from an •order entered in said clerk’s office on the 14th day of November, 1910, denying the plaintiff’s motion for a new trial made upon the minutes..
    
      William F. Dowling, for the appellant.
    
      J. W. Rayhill, for the respondent.
   Robson, J.:

Plaintiff is the beneficiary named in a policy of insurance upon the life of her husband, Antonio Liesny, for the sum of $500, to be paid to her upon the death of the.insured.

The material question litigated at the trial was whether this policy had been by the defendant declared forfeited or lapsed on failure to pay the premium payable thereon September 30, 1908, following a notice mailed and addressed by the defendant to the insured, pursuant to the provisions of section 92 of the Insurance Law. (See Gen. Laws, chap. 38 [Laws of 1892, chap: 690], § 92, as amd. by Laws of 1906, chap. 326; now Consol. Laws, chap. 28 [Laws of 1909, chap. 33], § 92.)

In disposing of this appeal, it may be assumed, without directly deciding, that the answer,, as amended by permission of the trial court, sufficiently pleaded this defense.

To establish this defense it was necessary for the defendant to prove not only that the defendant had mailed and addressed to the insured, as the statute requires, the prescribed notice but also failure to pay the premium referred to in the notice. (Fischer v. Metropolitan Life Ins. Co., 37 App. Div. 575, 580; affd., 167 N. Y. 178.) As was said in the case cited: It was just as necessary to prove one of those facts as the other, because both of them together were required to constitute a forfeiture.” The defense being an affirmative one, the burden of establishing it by proof óf the facts, upon which it depends, rested upon the defendant. Plaintiff’s counsel requested the court to charge: That the non-payment of a premium and the forfeiture of the policy are affirmative defenses that must be established by the defendant by a preponderance of evidence.” The request was denied, aüd exception was duly taken. For the reasons above stated we think the plaintiff Was entitled to have the jury instructed as requested. The evidence as to the payment of the premium in question was conflicting and it cannot be affirmed that the plaintiff’s rights may not have been prejudiced by the refusal to charge as requested.

All concurred.

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