
    George L. Wilcox, Appellant, v. The Equitable Life Assurance Society of the United States, Respondent.
    
      What surrender of a lost insurance policy is necessary to entitle the owner thereof to a paid-up policy—a complaint not alleging a surrender is demurrable.
    
    Where a policy oí insurance contains a provision that if it should become void, after the payment of the premiums for three years, because of a default in the payment of any subsequent premium, the insurer would issue in lieu thereof a new paid-up policy, “provided that said policy shall be surrendered duly receipted within six months of the date of default in payment of premium on said, policy,” the fact that the policy sought to be exchanged has been stolen, and that it is impossible for the policyholder to surrender the identical instrument, does not excuse him from his duty to deliver to the insurer a sufficient surrender of the policy and a sufficient receipt of all liability thereon.
    A complaint, in an action brought to compel, the delivery of a paid-up policy in lieu of the stolen one, is demurrable unless it alleges the delivery to the insurer of a valid surrender of the stolen policy.
    Appeal by the plaintiff, George L. Wilcox, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of March, 1900, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.
    
      De Witt C. Morrell, for the appellant.
    W. C. Prime, for the respondent.
   Rumsey, J.:

The plaintiff alleges that on the 9th day of October, 1883, the defendant, in consideration of the payment to it of an annual premium of $58.18 a year, and an agreement to pay such annual premium for twenty years, made a policy of insurance whereby it insured the life of the plaintiff for $2,000, and promised to pay to him at the expiration of the twenty years if living, or in the event of his death to another person named, the amount of the policy. It is alleged that the policy contained a further provision by which the defendant agreed that if the premiums upon the policy should be paid for three years, and it should thereafter become void because of. a default in the payment of any subsequent premium, the society would issue in lieu thereof a new paid-up policy, “■ provided that said policy shall be surrendered duly receipted within six months of the date of default in payment of premium on said policy.” It is alleged that .the plaintiff paid seven annual premiums on the policy; that he then lost the policy and was unable to find it; that' he had made default in the.payment of the premium falling due in the year 1890 and had made no payments since. It is further alleged that he demanded from the defendant a new paid-up policy in accordance with the terms above stated, duly informing the defendant that he surrendered his policy, but that it had been stolen and he was unable to recover the same and, therefore, could not deliver it to the defendant, but that the defendant has refused to deliver to him the paid-up policy. The complaint contained the further allegation that the plaintiff has duly performed all the conditions on his part except the surrendering of the policy, which he was unable to do for the reasons above stated, and that he “ has always been and still is ready and willing to perform on his part except as to the delivery of the stolen policy.”

The defendant demurred to this complaint on the ground that it did not state facts sufficient to constitute a cause of action, and from the judgment sustaining that demurrer this appeal is taken.

Before the plaintiff was entitled to a paid-up policy under this agreement he was bound to surrender the Original policy duly receipted within six months of the default in the payment of the premium on the policy. The plaintiff has failed to allege that he complied with the condition of the contract that the policy duly receipted should be surrendered. It is quite true that having lost the policy he would be unable to deliver to the defendant the identical paper with the receipt indorsed upon it, but to make a valid surrender of the policy it was not necessary that that paper writing should be delivered to the defendant. The loss or destruction of that paper did not determine the contract, and although it was impossible for the plaintiff to surrender the paper to the defendant, yet he was still able to deliver to it a sufficient surrender of the policy and a sufficient receipt of all its liability upon it. No other person could obtain any rights under the policy unless he had an assignment, and, therefore, if a surrender or release of the policy in proper form, containing a receipt for any amount due upon it, had been delivered to the defendant, that would have been a sufficient compliance with the terms of the contract to entitle the plaintiff to a paid-up policy had the other conditions been fulfilled. But nothing of that kind is alleged to have been done, and,, therefore, the contract was not performed by the plaintiff, and he was not entitled to a paid-up policy; and for that reason the demurrer was well taken, and the judgment must be affirmed, with costs.

Van Brunt, P. J., Patterson and Hatch, JJ., concurred.

Judgment affirmed, with costs.  