
    George R. Hamm, an Infant, by George H. Hamm, His Guardian ad Litem, Appellant, v. The Prudential Insurance Company of America, Respondent.
    Third Department,
    March 9, 1910.
    Insurance — infant — power to rescind policy — section 55, Insurance Law.
    An infant cannot rescind a policy of insurance taken on his. life and recover back the premiums.
    Section 55 of the Insurancé Law, as amended, providing that a minor shall 'not be deemed incompetent to contract for insurance, is not . declaratory of the common law, but in contravention thereto.
    It is immaterial that the policy sought to be rescinded was an endowment policy, as the failure of the Legislature to specify what insurance might be taken by an infant indicates that he may make a valid contract in any of the common forms.
    .. Appeal by the plaintiff, George R. Hamm, from a judgment of the County Court of Columbia county in favor of the defendant, entered in the office of the clerk of said county on the 21st day of September, 1909, reversing a judgment of the City Court of the city of.Hudson in favor of the plaintiff.
    
      D. V. McNamee, for the appellant.
    
      Amasa J. Parker, Jr., for the respondent.
   Shith, P. J.:

The action is brought to recover back certain premiums paid by the plaintiff upon a life insurance policy issued by the defendant. At the time the policy was. taken the plaintiff was about seventeen years of age. After having paid certain sums thereupon, while still an infant, he assumed to rescind the contract by reason of his minority and asks to recover back the moneys paid as premiums. The defense is that this was a binding contract under section 55 of the Insurance Law (Laws of 1892, chap. 690), as amended by chapter 437 of the Laws of 1902. The provision referred to is as follows: “In respect of insurance heretofore or hereafter, by any person not of the full age. of twenty-one years but of the age of fifteen years or upwards, effected upon the life of such minor, for the benefit of such minor, * * * . the assured Rha.11 not, by reason only of such minority, be deemed incompetent to contract for such insurance or for the surrender of such insurance, or to give a valid discharge for any benefit accruing, or for money payable under the contract.” The plaintiff’s contention is that at common law the infant had the right to make the contract, which was not void but only voidable at his election, and that this statute is simply a declaration of the common-law rule. It is difficult, however, to see for what purpose the statute was passed if that be its interpretation. Ho insurance company would insure an infant with the right of the infant at any time to cancel the'policy and to recover back the premiums paid. There are many reasons why it may be well for the infant, and those dependent upon the infant, that it should be possible to effect insurance upon his life. It may reasonably be supposed that the Legislature had in mind the desirability of an infant’s having the power to make a valid contract, one that should be binding upon him as to the obligations imposed in order to secure to him the benefits which it could give.

A further question is raised — that this policy is not 'merely a policy of insurance but is what is called an endowment policy, or one under the terms of which a certain sum was to be repaid to the assured at a period of twenty years, and that the policy was in the nature of an investment as well as in the nature of an insurance policy. But these different forms of policies were commonly known at the time of the passage of this act, and were presumably within the knowledge of the Legislature. The right to make investments in connection with insurance is a more important right to a boy than it is to an older man. "With the presumed knowledge of the different forms of insurance commonly in use, the failure of the Legislature to specify what insurance might lawfully be taken by an infant would seem to indicate that the infant was permitted under the statute to take any of those forms that are commonly used and-make a valid contract in reference thereto.

We are of opinion, therefore, that the county judge was right and that the judgment must be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  