
    Stewart v. Union Mut. Life Ins. Co.
    
      (Supreme Court, General Term, First Department.
    
    February 18, 1892.)
    Insurance—Conditions—Allegation of Performance.
    In an action against an insurance company, the policy attached to the complaint stated, as one of the conditions, that the first premium should be paid at the home office on the delivery of the policy. The complaint alleged that the policy was duly executed and delivered for value. Held that, as against a demurrer, this was a sufficient allegation of performance, as it must be presumed therefrom that the premium was so paid or that a credit was given. Bogardus v. Insu/ranee Co., 4N. E. Rep. 522, 101 N. T. 328, distinguished.
    Appeal from special term, Mew York county.
    Action by Anna B. Stewart against the Union Mutual Life Insurance Company on a life policy. A demurrer to complaint was overruled, and defendant appeals.
    Affirmed.
    Argued before Van Brunt, P. J., and Patterson and O’Brien, JJ.
    
      Sawyer <& Getty, for appellant. Samuel B. Paul, for respondent.
   Van Brunt, P. J.

We think that the whole difficulty with the defendant’s argument in support of its demurrer is that it assumes facts which do not appear. One of the facts upon which it relies it states to be that the insured obtained possession of the policy of insurance in question without paying anything therefor. The complaint not only does not contain any such statement, but, on the contrary, it alleges that the policy was made, executed, and delivered on April 19,1890, for value received,—a fact which is admitted by the demurrer, it further alleges the purport of the policy; death of the assured on August 14, 1890; furnishing of proper proofs of death; demand of payment; and refusal. Attached to the complaint is a copy of the policy, which contains the following clause: “The policy is issued upon and subject to the following conditions, and the conditions stated in the second page of this policy, all of which are hereby referred to and made a part hereof: That the first year’s.premium of one hundred and twenty-three dollars and ten cents shall be paid at the home otiice on the delivery of this policy, ” etc. The demurrer is upon the ground that the complaint does not state facts sufficient'to constitute a cause of action. It is claimed that because it is not alleged that the $123.10 agreed to be paid on delivery of the policy has been paid, or that its payment has been waived, the complaint is defective. This position cannot be sustained because the allegation of the complaint is that the policy had been duly executed and delivered for value, and the presumption would be, as the company could exact the "first premium on delivery of the policy, that it had been paid, or, if it had not been paid, that a credit was intended. Miller v. Insurance Co., 12 Wall. 285-303. It is urged that the case cited has no application, because in that case the condition was a condition subsequent, and not a condition precedent, as in this case. The application in the case cited contained an express agreement that the policy should not be binding until premium paid, whereas this policy does not contain any condition that it shall not attach or be operative unless the first premium has been paid. Thus the case at bar is much stronger in favor of the respondent than the case cited. The company have a right to exact the premium on delivery of the policy, but, if they deliver such policy without such payment, they are presumed to have intended to give credit. In the case of Bogardus v. Insurance Co., 101 N. Y. 328-335, 4 N. E. Rep. 522, it appears that the failure to make certain payments avoided the policy,—an entirely different case from the one at bar. It is undoubtedly true that a complaint must allege a performance of conditions precedent, or, if a waiver is claimed, it must be pleaded; but in the case at bar facts are alleged which show either a performance of the condition or a waiver, if the condition has not been performed, viz., due execution and delivery of the policy. Hence the defendant must raise the issue by answer, and not by the assumption of facts which do not appear upon tíie face of the complaint. The judgment should be affirmed, with costs; defendant to have leave to answer upon payment of costs of appeal and costs of court below. All concur.  