
    Sarah J. McElwain, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    
      Life insurance—action to recover p-emiums paid on an invalid policy—a waiver ' of the defect is a matter of defense.
    
    A complaint alleging that the defendant, an insurance company, issued its policy of insurance to the plaintiff upon the life of her husband, in consideration of the payment of a premium and of certain warranties and agreements contained in a written or printed application; that the plaintiff’s husband signed no application for, and had no knowledge of, such insurance, and that in consequence thereof the policy was invalid; that the plaintiff had no knowledge of how or by whom the application was made out, and that before discovering that the policy was invalid she had paid to the defendant certain premiums thereunder, of which, .upon learning that her husband had never made any application for the insurance, she demanded the return, which demand was refused by the'defendant, states a cause of action.
    In such case a waiver by the defendant of strict conformity to the requirements of its contract of insurance, by the issue of a policy without any formal application having been made therefor, is a matter of defense to be established' as such, and cannot be regarded as admitted by such a complaint.
    Appeal by the plaintiff,. Sarah J. McElwain, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Monroe on the 8th day of December; 1897, upon the decision of the court rendered after a trial at the Monroe Trial Term before the court without a jury.
    
      Harold C. Mitchell, for the appellant.
    
      Eugene Van Voorhis, for the respondent.
   Per Curiam :

This action was brought to recover the premiums paid by the plaintiff upon a policy of life insurance issued by the defendant upon the life of the plaintiff’s husband, upon the ground that the insured had not signed the application for the policy, and had no knowledge of and never consented to such insurance.

Issue was joined by the service of the defendant’s answer, and upon the trial the plaintiff’s complaint was dismissed, for the reason that the facts stated therein did not constitute a cause of action. For the purposes of this appeal, therefore, all the allegations of the complaint must be treated as true, and these briefly epitomized are as follows, viz.:

•1. That on the 8th day of June, 1891, the defendant issued to the plaintiff a policy of insurance, whereby, in consideration of the payment of a premium of twenty-five cents per week and of certain warranties and agreements contained in a written or printed application, it assumed to insure the life of her husband-, Andrew McElwain, in the sum of $180.

2. That the plaintiff’s husband signed no application for and did not consent to or have any knowledge of such insurance, and that in consequence thereof the policy so issued was invalid.

3. That the plaintiff had no knowledge of how or by whom the application was filled in or made out.

4. That before discovering that her policy was invalid the plaintiff had paid to the defendant premiums amounting to seventy-six dollars.

5. That upon learning that her husband had never made any application for the insurance the plaintiff demanded a return of the money so paid, which demand was refused by the defendant.

Unquestionably it would have been better practice for the pleader to have stated his facts with a little more particularity than he has. done; but nevertheless, in view of the well-settled rule that the complaint will in the circumstances of this case be held to state all the facts which can be implied from its allegations by reasonable and fair intendment (Sage v. Culver, 147 N. Y. 241; Spies v. Michelsen, 2 App. Div. 226), we think it sufficiently explicit to entitle the plaintiff to prove the contract of insurance; and if upon such proof it shall appear that the consideration therefor was certain warranties and representations of the insured, which in fact were not made by him, the plaintiff will have gone a long way towards proving a good cause of action.' And with these facts once established we fail to see wherein the contract can be said to possess any validity, for, in the event of the. death of the party whose life was sirpposed to have been insured, the defendant, would certainly have the right to interpose as a defense to an attempt to enforce the contract, the fact that the same was invalid by reason of the failure of the insured to sign a proper application; and in the absence of any waiver by the defendant of such omission, a defense of that nature would probably prevail.

It is contended, however, that the defendant has expressly waived strict conformity to the requirements of its contract of insurance by issuing a policy without any formal application having been made therefor; and it was- upon this theory, as we understand it, that the complaint was dismissed by the learned trial court. .

It is certainly true, as we have 'already had occasion to hold, that' the rule which this defendant has adopted requiring an application for insurance to be personally signed by the person whose life is to' be insured, as a condition precedent to the. issuing of a policy, is a detail of the business which may be waived by the insurance company (Wells v. Metropolitan Life Ins. Co., 19 App. Div. 18, 25) ; but in the case cited we held that it had been waived by the acts of ■ the company, and it is not impossible that in the present action the defendant may be able to prove a similar state of facts and thus defeat the plaintiff’s recovery. Waiver, however, is a matter of defense and must be established as any other defense hy proof or concession. There is, of course, no proof of it as yet in this case, and we fail to find anything in the plaintiff’s complaint which can be reasonably regarded as an admission of that fact.

Our conclusion, therefore, is. that the complaint does set forth a cause of action, and that the order of the trial court dismissing the same was error which requires a reversal of the judgment appealed from.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.  