
    William J. Rand, Appellant, v. Massachusetts Benefit Life Association, Respondent.
    
      Life insurance — reinsurance of the risks of another company not within the prohibition of the statute forbidding the taking of risks on lines of over sixty years — proof as to restrictions in a foreign statute.
    
    
      (fumre, whether a statutory provision which forbids a benefit life insurance association to take risks on the lives of persons over .sixty years of age, applies to the case of the reinsuring pf the risks of another insurance company.
    The recovery of premiums paid on such a-policy, on the ground that they were paid without consideration, not sustained where there had been a default of payment forfeiting the policy.
    The question as to the validity, under the laws-of another State, of a policy of insurance claimed to he in violation thereof, presents a question of fact which must be established by proof.
    Appeal by the plaintiff, William J. Rand, from a 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 15th day of January, 1891, upon the decision of the court rendered after a trial at the New York Trial Term dismissing his complaint upon the merits, the action having been tried by the court without a jury upon an agreed statement of facts.
    
      David K. Case, for the appellant.
    
      J. K. Hayward, for the respondent.
   Patterson, J.:

The cause of action as set forth' in the complaint is based upon allegations of fraud. The averments are, in substance, that with intent to cheat and defraud the plaintiff’s- assignor, and thereby procure him to pay to it certain moneys, the defendant, through its agents, falsely and fraudulently represented that it was duly authorized to issue to him a certain policy of life insurance, whereas, in fact, it was prohibited by statute from so doing. The defendant is a Massachusetts corporation, and at the time. it issued its policy to the plaintiff’s assignor it was not allowed to take risks on the lives of persons over sixty years of age, the plaintiff’s assignor being at that time about sixty-two years old. Knowledge of the alleged misrepresentation is charged, and the deceit claimed to have been practiced is the only foundation of the action. All fraud is fully •denied in the answer. The cause was submitted at the trial on an .agreed statement of facts, from which it conclusively appears that, if a determination were to be made under and according to the issues as they are framed by the pleadings,The judgment appealed from is manifestly right. The plaintiff failed altogether to sustain his complaint. There is not one syllable of proof to show fraud or •deceit. The substance of the charge is that the defendant, being forbidden by law from taking a risk on the life of a person of the .age of the plaintiff’s assignor, stated that it could make a valid contract with him (doubtless what is meant is that the agent concealed its want of authority 'to make the contract), issued its policy, allowed him to pay assessments and mortuary calls, while he was in ignorance that its contract with him was void and would be unenforcible. The agreed statement of facts shows that an intent to defraud ■did not exist, and that there is no ground for even the slightest inference against the honesty and good faith of the defendant, in the transaction. The plaintiff’s assignor, prior to December 10,1889, held a policy of insurance in the Security Mutual Benefit Society •of New York. That company was consolidated with the defendant at the date mentioned, the latter taking over the outstanding risks ■of the former by way of reinsurance, and issuing its policies in exchange for those of the Security Company. The Massachusetts .statute allowed companies chartered by that State to consolidate with other and similar corporations. The plaintiff’s assignor was within the age limit when he took out his policy in the Security •Company. He surrendered that policy to the defendant, pursuant to the consolidation scheme, and accepted the substituted policy of the defendant. In the agreed statement of facts it is admitted “ that the defendant was advised, at the time of said consolidation, by counsel learned in the- law, that it had good right to receive and give good insurance to such consolidates then upwards of sixty years of age, and that its action -in said, transaction was in pursuance of said advice, and in the belief that it was acting legally in the premises.” That part of the stipulation disposes.effectually of the cause of action arising out of alleged fraud.

There is, however, another view of the case requiring consideration. It was submitted for decision, apparently without regard to the real nature of the cause of action, and the parties thus invited the court to dispose of the controversy between them on the general merits of the plaintiff’s claim to recover the moneys his assignor had paid on the policy. In that situation it is urged that, on the conceded facts, the plaintiff is entitled to recover as'in an action for money had and received, the amount of the annual assessments and mortuary calls his assignor had paid the' defendant after September, 1889, there' being, it is cloned, no other consideration for such payments than the void promise or obligation of the defendant. The.proofs as made are insufficient to show that the defendant has received moneys of the plaintiff’s assignor which, ex æquo et bono, it should not retain. It is not shown as matter of fact that the contract of insurance was void. The validity of that contract, under the laws of Massachusetts, is a question of fact in the courts of this State. It is proven that the plaintiff’s assignor failed to keep alive his policy; he defaulted on payments due and called for. It is further shown that the defendant assumed many millions of “ overage ” risks from consolidated companies, and has always paid without objection every honest claim made under such policies. It is not contended that the consolidation of the two companies was unlawful, nor that the taking over by the defendant of the Security Company’s outstanding risks was anything other than reinsurance: There is nothing in the Massachusetts statute fixing an age limit, which applies in terms to reinsurances, which are permitted to be made. The prohibition, by reasonable construction) relates to original risks taken in the first instance by an insuring company;- and as the trial judge remarked, “in such a case (as this) the absorbing Corporation is not required to refuse the transfer of risks of the other company, because the insured happens at the time of the consolidation to be over sixty years of age.” It is not shown, therefore, that the defendant has received moneys on a void contract, or that it would be inequitable to allow it to retain what it has received from the plaintiff’s assignor.

On the facts as they are made to appear, the judgment was properly directed and must be affirmed, with costs.

Rumsey, O’Brien and Parker, JJ., concurred ; Van Brunt, P. J., concurred in result.

Judgment affirmed, with costs.  