
    KOLGERS against THE GUARDIAN LIFE INSURANCE COMPANY.
    
      Supreme Court, Second Department, Second District; General Term,
    
    
      September, 1870.
    Insurance. —Evidence oe Waiver oe Foreeiture. —Power oe Agent.—Case.
    In an action upon a policy of insurance, it appearing that the policy had been forfeited by default in the payment of premiums, it becomes incumbent on the plaintiff to showa receipt of the premium by some one authorized to receive it after forfeiture, or to show a ratification of an unauthorized receipt, by the company’s acceptance of the money with knowledge of the facts, or in some other way.
    Proof that payment, after forfeiture, was made to a clerk of the company, who, though authorized, in the course of business previously, to collect premiums, was not authorized to collect premiums on forfeited policies, is not, of itself, sufficient to establish a waiver of the forfeiture, especially where it appears that the company had never received the premium so collected by him.
    In such an action, the charter and by-laws are properly admissible to show who were authorized to remit forfeitures.
    Where the appellant seeks to reverse a judgment, on the ground that evidence offered by him was erroneously excluded, his case on appeal ought, properly, to present the rejected evidence, or such parts of it as show it to be admissible.
    Appeal from a judgment.
    This action was brought by Gertrude Kolgers against The Guardian Life Insurance Company of New York, to recover upon a life insurance policy of four thousand dollars, issued by the defendants on the joint lives of Albert and Gertrude Kolgers, payable, on the decease of either, to the survivor.
    
      It appeared from the evidence that, after the husband had neglected to pay two quarterly premiums,' his wife went to the principal office of the company, 251 Broadway, and asked if the premiruús had been paid. A clerk, named Holley, on examining the books, said the premiums had not been paid, and stated the amount. On her promising to call the next day and pay it, the clerk offered to come to her house to receive it; and he did so, giving the printed receipts of the company in the usual form, stating the payment as binding the policy for the current quarter. Soon after, the husband died.
    It appeared from the evidence that, before his death, the treasurer of the company ascertained that, the premiums had been in default, and that the clerk, Holley, had collected them, but had not accounted for them to the company. It also appeared that Holley had , been instructed not to receive premiums on forfeited policies, and never before had doné so.
    Holley, being called to account by the company, admitted that he had received these premiums, and the treasurer required him to make his usual report of the collection of the premium, which report the treasurer received. This was a short time before the death of the husband; and immediately after his death the treasurer tendered to Mrs. Kolgers re-payment of the premium, on the ground that the clerk had no right to' receive it, as the time of the policy had expired when it was paid. The plaintiff refused to receive the premium, and thereupon brought this action to recover upon the policy. On the trial, the court directed a verdict for the plaintiff for the amount of the policy, and from the judgment entered thereon the defendants now appealed.
    --, for the appellants.
    
      Morris & Pearsall, for the plaintiffs.
   By the Court.—J. F. Barnard, Ch. J.

At the time of the payment by plaintiff to Holley of the two quarterly • premiums, the policy was forfeited by its terms. It then became incumbent upon the plaintiff, in order to recover upon the policy, to show a receipt of the premium by some one authorized to receive it, after forfeiture, or to show a ratification of an unauthorized receipt by the company, by an acceptance of the money with knowledge of the facts, or in some other way. I think the case fails to show Holley’s authority to receive the money after forfeiture. He was a clerk of defendants, had been an agent to receive applications for insurance in New Jersey, which appointment had been revoked. He had been sent by a previous - secretary to collect premiums, but always with strict orders to collect none on forfeited policies. Holley signed the receipts for the payment in question as agent for the then secretary. There is no proof of his power to act as agent for the secretary. Neither Holley nor this secretary is produced as a witness. If the secretary had the power to.waive the forfeiture, he is 'not proven to have done it., HoHey had never done a like act. His power to bind the company, by receiving money on policies on life, would be no evidence of power to waive the forfeiture by receiving the premium after the policy had ceased to exist, by reason of nonpayment. The company had never received the premium collected by HoHey.

I am unable to distinguish this case, in principle, from an unreported case in this district—Taylor v. British Commercial life Ins. Co.

In this case the policy was upon the life of one E. P. Taylor. WiHiam Wilson was the agent to receive the premiums. He was instructed, if the premiums were not paid within thirty days, to return the receipt to the general agent in New York. The poHcy provided that it should be void if the premiums were not paid within thirty days after the same became due. Taylor suffered default for over thirty days. About fifteeen days after the policy became forfeited, the assured paid the premium to a clerk in the office of the agent, Wilson. Within a few days after this payment, the assured died. The company had never received the money; The clerk in the office of the agent had generally received the premiums for his father, the agent. The court held this William Wilson had no power to waive the forfeiture or to bind the company by receiving the money after default; that he was a special agent, and could not exceed his powers as such and bind his principal by Ms acts, although the assured knew nothing of his limited powers.

In that case the charter and by-laws were admitted in evidence—I think it was erroneous to exclude them in this case. If they did show who was authorized to remit forfeitures they should have been received. From the evidence of the president of defendants, I suppose they did.

The rejected evidence, or such parts of it as would show its pertinency, should properly have been presented by the case, so that this court could more satisfactorily determine this point. I think the judgment and order denying new trial should be reversed, and new trial granted, costs to abide the event.

Order accordingly.  