
    John J. Brady, as Administrator, Respondent, v. The Prudential Insurance Co. of America, Appellant.
    (New York Common Pleas—General Term,
    June, 1894.)
    A policy of life insurance provided for payment of the premiums weekly to a collector, or, in case they were not collected on the day of maturity, at the home office or to an authorized agent within four weeks thereafter, in default of which the company should be at liberty to cancel the policy without further notice. Held, that it was optional with the insurer to cancel the policy on such default; that, until some affirmative action on its part to do so, the policy remained in force, and that an attempt to cancel the policy after the death of the insured would not avail to relieve the insurer of liability.
    Appeal from a judgment of the District Court in the city of New York for the fifth judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    Action to recover upon a policy of life insurance.
    
      James A. Donegan, for respondent.
    
      William O. Campbell, for appellant.
   Bischoff, J.

The policy sought to be enforced in this action was one issued upon payment of weekly premiums, and concededly the last premium was paid June 6, 1892. The insured died August 9, 1892, without having tendered the premiums in arrear; nor were such premiums tendered to the defendant company at any time after the insured’s death. The main question litigated in the court below was whether or not the policy was in force at the time of the insured’s death.

The policy expressly provided, among other things, that payment of the weekly premiums should be made on Monday of each week to the company’s collector, but that if any premium should remain uncollected on the day of maturity, it should be incumbent upon the insured to pay the premium at the company’s home office, or to its authorized agent, within four weeks thereafter, in default of which the company should be at liberty to cancel the policy without further notice. The defendant did not cancel the policy until August 15, 1892, six days after the insured’s death.

We are of opinion that the foregoing provisions of the policy fairly imply that affirmative action was to be taken by the defendant company to cancel the policy, and that until such action be had the policy was to remain in full force and effect. Cook Life Ins. § 98, p. 181; Scheu v. Grand Lodge Independent Foresters, 17 Fed. Rep. 214. Until such affirmative action was had, the insured could not have successfully resisted payment of the defaulted premium if such payment was insisted upon by the defendant. It was optional with the defendant to cancel the policy. Hence, the insured was in no position to urge as a defense to a demand for payment of the premium that the contract of insurance had expired. Accordingly, the policy must be deemed to have been in force at the time of the insured’s death, when it matured and the beneficiary’s right ■ to payment of the sum insured accrued. The subsequent attempt of the defendant to cancel the policy could not enable it to escape liability.

The conclusion reached renders futile any discussion of the question whether or not the policy in question is affected by the provisions of chapter 341, Laws of 1876, as amended by chapter 321, Laws of 1877.

The judgment should be affirmed, with costs.

Giegerich, J., concurs.

Judgment affirmed, with costs.  