
    Elizabeth Guntrum, as Administratrix, etc., of Frederick J. Guntrum, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant.
    Third Department,
    June 30, 1916.
    Insurance—waiver of conditions of policy as to entry of premium payments in receipt book — agent may not waive conditions.
    An insurance company, by receiving and retaining premium payments, will be held to have waived a clause of the policy which requires that “ payments to be recognized by the Company must be entered at the time of payment in the premium receipt book belonging with this policy,” where there is no dispute but that the company’s agent, under an arrangement with the insured, advanced such payments and the company received and kept the money.
    While an agent of an insurance company may not waive the conditions of a policy of insurance, the company may.
    Woodward, J., dissented.
    Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 26th day of October, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of November, 1915, denying defendant’s motion for a new triaLmade upon the minutes.
    
      Amasa J. Parker, Jr., for the appellant.
    
      William Goldberg [Louis J. Bezzemini of counsel]," for the respondent.
   Howard, J.:

The insurance policy upon which this action is based requires that “payments to be recognized by the Company must be entered at the time of payment in the premium receipt book belonging with this policy.” And it also provides that “ after the expiration of the said period of grace [four weeks], the Company’s liability under this policy shall cease.” The policy was written August 5, 1912; the insured died October 25, 1912. Six payments are entered upon the receipt book belonging to this policy, the last one being due September 9,1912. If there were no valid payments made upon this policy after September 9, 1912, the company’s liability had ceased on October 25, 1912, the premiums having been in arrears at that time for a period exceeding four weeks. But the plaintiff offered evidence that all payments had been made to, and accepted by, the company up to October 21, 1912. The jury has given credit to this evidence and found the facts to be as alleged by the plaintiff. We are not disposed to upset this verdict as being against the weight of evidence. Therefore, the question arises whether the payments made subsequent to September ninth, they not having been entered in the premium receipt book, are valid.

Philip Jacobs, who was the agent of the defendant having in charge the collection of the premiums due on this policy, testified: “He [the insured] never had a premium receipt book. I would give bim a receipt at different times. * * * Whenever I met him he would pay me for his insurance premium. I would enter it in my collection book and give him receipts. * * * My payments were always turned in every week at the office and his premiums were turned into the office by me; I think I was paying them between the 18th day of September and the 25th of October, 1912. * * * He was always within the limit and therefore he was not in arrears and nothing to keep the insurance company from paying the claim. My collection book will show all this.” The collection book was introduced in evidence and shows all payments up to Octobet wenty-first. Jacobs also testified that the insured made nor payments to bim after September 18, 1912. It thus appears from this evidence that Jacobs was making the payments for the insured. That is to say, although the insured did not pay his premiums to Jacobs as they became due, Jacobs paid them to the company as they became due and the company received the money and has kept it. By doing so the defendant must be held to have waived the clause of the policy which requires the entry in the receipt books of all payments; for, while an agent may not waive the conditions of a policy, the company may do so. If the plaintiff had been able only to make proof of payments to the agent, such payments, of course, under the terms of the policy, unless entered in the receipt book, would not be binding upon the company; but here the plaintiff has traced every payment due to the defendant into the coffers of the defendant —payments which remain there yet. The agent was advancing these payments under an arrangement with the insured, but the company received the money as effectively as though the insured had paid it to Jacobs and had caused the payment to be noted in the receipt book. The clause in the policy which requires all payments to be entered in the receipt book seems to have been inserted to protect the company against disputes between policyholders and agents as to whether payments have been made. But the company cannot invoke this clause when there is no such dispute and when it has actually received and kept the premium payments.

The judgment and order should he affirmed.

All concurred, except Woodwaed, J., who dissented.

Judgment and order affirmed, with costs.  