
    Nellie E. Peck, Respondent, v. The Washington Life Insurance Company, Appellant.
    
      Life insurance — a policy accepted by the assured and then assigned to the agent of the insurance company who thereafter pays the premium^it is enforcible — it is not a wager policy — answer of the assured on a medical examination that he had a canlcer sore — it does not show that he had a cancer — burden of proof.
    
    In an action brought to recover upon a policy, of insurance issued by the defendant upon the life of one William R Plyer, which had been assigned to the plaintiff, it appeared that the plaintiff had been appointed general agent of the defendant, but that, with the knowledge of the defendant, the business of the agency was conducted by the plaintiff’s husband; that the plaintiff’s husband procured an application from Plyer for insurance to the amount of 512,500 upon the ordinary life plan; that the defendant refused to write this policy because of certain matters in Flyer’s family history and offered to write two twenty-year endowment policies for 52,500 each.
    The policies were written and delivered to the plaintiff’s husband. Plyer, on examining them, insisted that he desired a 510,000 regular life policy, but finally consented to take the policies. One of them he took absolutely and the other he took under an understanding that the plaintiff’s husband should take an assignment of the same and should carry it during the time that he was negotiating a 510,000 regular life policy, giving Plyer the option of buying the policy back by repaying the amount of the premiums. If the 510,000 policy was secured, then the plaintiff’s husband was to have the right to continue paying the premiums on the assigned policy, or to cancel it, as he might see fit. Pursuant to this arrangement, Plyer, at the suggestion of the plaintiff’s husband, executed an assignment of the policy to the plaintiff.
    Plyer died some months later, and the defendant paid the policy which he took absolutely, but declined to pay the policy -which had been assigned to the plaintiff.
    
      Skid, that the plaintiff’s husband, acting for the plaintiff with the knowledge of
    ■ the defendant, and being in possession of the policy, was clothed with the authority of a general agent in taking applications and delivering policies, and that, as such general agent, he had the authority to waive the immediate payment of premiums;
    That, consequently, the fact that the first premium of the policy in suit was not paid at the time it was delivered, was, in the absence of fraud, immaterial, it appearing that this premium had subsequently been paid to and retained by the defendant with knowledge of the assignment of the policy;
    That the relation of the plaintiff to the policy in suit was not that of an agent of the defendant, but that of an assignee of Plyer, and that the question whether she paid anything for the assignment of the policy did not concern the defendant;
    
      That the policy which was made payable to the legal representatives of Plyer, having been delivered to him, became, on delivery to him, a valid contract, and that its assignment to the plaintiff did not render it void as a wager' policy.
    Plyer stated in his medical examination that he had never had a cancer, but told the medical examiner that he had had a canker sore on his tongue. He subsequently developed a cancer on his tongue and died from the effects of blood poisoning growing out of an operation.
    
      Held, that these facts did not establish that he had a cancer at the time of the examination or that he had'any reason to believe that the canker sore was, in fact, a cancel";
    That the burden of proof with respect to these matters was'upon the defendant.
    Appeal by the defendant, The Washington Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 29th day of Hay, 1903, upon the decision of the court rendered after a trial at the Queens County Trial Term, a jury having been waived.
    
      David Thomson, for the appellant.
    
      Robert B. Honeyman, for the respondent.
   Woodward, J. :

This action is brought to recover $2,500 upon a certain life insurance policy, issued upon the life of one William R. Plyer, this policy having been assigned to the plaintiff. It appears that Edward M. Peck, the husband of the plaintiff, was under contract with the New Tork and Manhattan Life Insurance Companies, and his wife, for convenience, entered into a contract with the defendant as its agent. The answer, in its eighth separate defense, alleges that “ the plaintiff, by agreement bearing date August 27, 1900, was duly appointed a general agent of the defendant £ for the purpose of procuring applications for life insurance and effecting such insurance as shall be satisfactory to the said company,’ and thereby agreed to £ act exclusively for The Washington Life Insurance Company; ’ ” but it appears from the evidence, without dispute, that the husband actually carried on the business with the aid of a bookkeeper, and the transaction out. of which, this controversy arises was conducted by him. Mr.. Plyer had occupied desk room in the office with Mr. Peck. On the 10th day of October, .1901, Mr. Peck procured an application from Mr. Plyer, the application contemplating $12,500 of insurance upon the •ordinary life plan. This the defendant refused to write, alleging •as a reason that there were defects in the family history which made it imprudent to do so, but one of the officers of the company ■suggested that the defendant would write two twenty-year endowment policies for $2,500 each, which would cost about the same as the insurance asked for in the application. Mr. Peck accepted this, suggestion, and the policies were written and delivered to Mr. Peck About the 28th day of October, 1901. A letter was written to Mr. Plyer, who came to Mr. Peck’s office on or about the first day of November, at which time the policies were delivered into his possession. He examined them, discovered that they were not the policies which he had requested, and had some negotiations with Mr. Peek in reference to- them, insisting at the same time that he ■desired a $10,000 regular life policy. Mr. Plyer consented to take the policies; one of them he took absolutely, and the claim upon •this one has been paid. The other he took with an understanding that Mr. Peck should take an assignment of the same and should •carry it during the time that he was negotiating a $10,000 regular life policy with the defendant or some other company, and Mr. Plyer was to have the option of buying the policy back by repaying the amount of the premiums. If the $10,000 policy was secured, ■then Mr. Peck Was to have the right to continue paying the premiums on this assigned policy, or to cancel it, as he might see •fit. In pursuance of this arrangement, and at the suggestion of Mr. Peck, Mr. Plyer executed an assignment of the policy in suit to the plaintiff. Mr. Plyer died on the twenty-ninth of the following March, plaintiff’s assignment in the meantime and on the twenty-seventh of February having been filed with the defendant company, which now refuses to make payment. The above facts are either conceded or are not seriously disputed, and at the close of the evidence both parties moved for a direction of a verdict. The learned trial court discharged the jury and reserved decisión, subsequently handing down a decision in the short form, as though the case had been tried by the court without a jury. From the judgment entered upon this decision, to which the defendant has filed exceptions, the latter appeals to this court.

The defendant in its answer alleges fraud in the inception of the contract, and insists that it is not a valid and binding agreement. Upon this appeal, it having failed to establish by evidence; the fraud alleged, it is insisted that the relation of principal and agent existing between the plaintiff and defendant, the former id. bound to prove affirmatively that the delivery of the policy’ was; free from any taint of suspicion, and that it was delivered and the; first premium paid during the lifetime and good health of William. E. Plyer. Primarily the issuing of the policy was the act of the-defendant, upon an application secured by the plaintiff’s husband,, with the knowledge of the facts in possession of the defendant.. While there was a nominal contract relation of principal and agent existing between the plaintiff and defendant, the latter was fully aware of the true situation, and the policy in question was delivered to the plaintiff’s husband for delivery to the insured, and this policy was, in fact, delivered to Mr. Plyer on the first day of November, within a few days of the time it was sent to Mr. Peck. The fact that the first premium was not paid at that particular time, it having been subsequently paid to and retained by the deféndant, is of no-particular importance, in the absence of fraud. Mr. Peck, acting; for his wife, with the knowledge of the defendant’s officers, and being in possession of the policy, was clothed with the authority of a general agent in taking applications and delivering the policies,, and as such agent he had the authority to waive the immediate payment of the premium. (Ames v. Manhattan Life Ins. Co., 31 App. Div. 180, 187, and authority there cited ; Genung v. Metropolitan Life Ins. Co., 60 id. 424, 429.) The subsequent payment-of the premium, accepted and retained by the defendant, with knowledge of. the assignment of the policy to the plaintiff, gave* complete force and effect to the contract on the 1st day of November, 1901. If we are right in this proposition, and if the policy became vested in Mr. Plyer ■ on the date mentioned,, there' is no further question in this case. If there was no fraud in. the delivery of the' policy on the first day of November; if Mr. Plyer became the -owner of a chose in action, and could have-been compelled to 'pay the premium, his subsequent transfer to the-plaintiff in this action was not a transaction between the principal and agent in any sense; it was between the plaintiff and Mr. Plyer, as to which the defendant is not concerned. It practically admitted,. by the payment of the second policy, issued at the same time and. under the same circumstances, as appears from the evidence, that, the policy in suit was a good contract as between Mr. Plyer and itself, but it is apparently of opinion that it was in some manner* vitiated by the fact that it was assigned to the defendant’s nominal agent. We are of opinion that this contention is not justified, and. that the defendant has no defense, unless it can prove the fraud in. the delivery of the policy. The relation of the plaintiff to this-policy is not that of the agent of the defendant, but as the assignee of Mr. Plyer, and the question of whether she gave anything for this assignment does not concern the defendant, which is simply-called upon to carry out the contract which it made with Mr. Plyer* to pay him or his representatives or assigns the amount of the policy which it issued with a full knowledge of the facts, upon its own terms. It knew the family history of the assured; there is no suggestion that there was any failure to answer fully and fairly all of the questions asked by the medical examiner, and the fact that the defendant refused the policy asked for and substituted a new contract, which the insured accepted, goes to show that there was a full opportunity for the defendant to know the character of risk, it was assuming. The plaintiff’s assignor, in answering that he; had never had a cancer, is not shown to have acted in bad faith,, or to have misstated the truth as he knew it; he told the medical, examiner that he had had a canker s'ore on his tongue, and this fact: appears in the record of that examination, and if there was any reason to anticipate danger from such canker it was the duty of the; medical examiner to have determined that fact. Because the; insured subsequently developed a cancer upon his tongue, and. because he subsequently died from the effects of blood poisonings growing out of an operation, does not establish that he had a cancer at the time of the examination, or that he had any reason to-believe that the canker sore was, in fact, a cancer, and the burden of proof was upon the defendant upon this proposition. (Spencer v. C. M. L. Ins. Assn., 142 N. Y. 505, 509.)

The suggestion that this was a" wager policy is not home out by the facts appearing in the evidence. The policy was made payable to the legal representatives of William R. Plyer, and it was delivered to him. If the delivery took effect, and we believe under the authorities that it did/ it became a valid contract; and it is well settled in this State that when a policy of insurance has been issued which is valid in its inception, an assignee of that policy may maintain an action upon it. (Ames v. Manhattan Life Ins. Co., supra.) The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  