
    Frederick H. Cyrenius, as Administrator of Alvin Cyrenius, Deceased, Resp’t, v. The Mutual Life Insurance Company of New York, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, ,1887.
    
    1. Insurance (life)—Policy—Assignment of—Evidence of.
    Alvin Oyrenius and George A. Oyrenius signed the application on which the policy in question was issued, by which the life of Alvin Oyrenius was proposed for insurance for the benefit of said George A. Oyrenius, who paid for and received the policy which was issued as requested. George received the receipts' for the premiums and signed an order directing that the dividend he applied in part payment of a certain premium. There was' no evidence from which the trial court could hold, as a matter of law, that Alvin Oyrenius acquired in his lifetime the right of George A. Oyrenius, except a remark in the testimony of George A. Oyrenius in answer to the-question, “ What did you do with it (the policy)? " A. “I gave it to my father.” Held, that this, in connection with other evidence, was not sufficient to justify a verdict that Alvin Oyrenius succeeded in his lifetime to , the rights of George in the policy. Bielccrton v. Jacques, 28 Hun, 119, and. Garner v. Germania Life Ins. Co., 13 Daly, 255, distinguished. Hardin, P. J., dissenting.
    2. Same—Notice required by Laws 1876, chap. 341, need not be given if POLICY NOT ISSUED OR RENEWED SINCE ITS PASSAGE.
    The policy in question was not issued or renewed after the passage of Laws 1876, chapter. 341, and it was unnecessary for the defendant to give the notice prescribed in that act. , Distinguishing Wyman v. Phoenix; Mutual Life Ins. Co., 10 N. Y. State Rep., 36.
    Appeal from a judgment in favor of plaintiff entered upon the verdict of a jury at the circuit court, and from an. order denying a motion for a new trial in an action upon a life insurance policy on the life of Alvin Oyrenius, in which the defense was forfeiture, etc.
    
      W. A. Poucher, for resp’t; William H. Shepard, for app’lt.
   Follett, J.

Alvin Cyrenius and George A. Cyreniussigned the application on which the policy was issued by which the life of Alvin Cyrenius was proposed for insurance for the benefit of said George A. Cyrenius, who paid for and received the policy, which insures th.e life of Alvin Cyrenius for the benefit of George A. Cyrenius, who, by the contract, is entitled to maintain an action for the recovery of the sum insured. Ferdon v. Canfield, 104 N. Y., 143; 5 N. Y. State Rep., 583; Alexander on Life Insurance,, 34, and cases there cited. It is not claimed that George A. assigned his interest in the policy to Alvin Cyrenius before his death. On the contrary, George A. received the receipts for the premiums paid June 18, 1874, and June 18, 1875. He signed the order of June 18, 1874, directing-that the dividend be applied in part payment of the premium. June 18, 1875, Frederick H. Cyrenius signed a like order. There is no evidence from which the trial court could. hold, as a matter of law, that Alvin Cyrenius acquired, in his life-time the rights of George A. Cyrenius, except the remark at folio 26: “ Q. What did you do with it, the policy % A. I gave it to my father.” This in connection with the other evidence is insufficient to justify the holding that Alvin Cyrenius succeeded, in his life-time, to the fights of George A. in the policy.

The case at bar is quite different from Bickerton v. Jacques (28 Hun, 119), and Garner v. Germania Life Insurance Company (13 Daly, 255). In Bickerton’s Case, a person insured his own life for the benefit of his sister, he paying all of the premiums and always retaining possession and control of the policy. His sister died and thereupon he exchanged the policy for one payable to his nephew. It was held that the nephew, instead of the representative of the sister, was entitled to the sum insured.

In Garner’s Case, a father, naving a second wife, insured his life for the benefit of his children by his first wife, paid the premiums, retained the policy in his posession for fourteen years, and then omitted to pay the annual premium when due. Four days after he surrendered the old policy without the assent of the children, and took a -new one for the benefit of his wife. Before the second premium fell due on the new policy the father died, and the insurance was paid to the widow. An action brought for the benefit of the children was dismissed, upon the ground that the father having paid all of the premiums, and having always retained the policy in his possession and control, he had the legal right, without the assent of the beneficiaries, and with the assent of the assurer, to exchange the policy for a new one, payable to his wife. Neither case is an authority for holding that Alvin Cyrenius acquired the interest of George A. in the policy in suit. There is no evidence that the premiums due June 18, 1874, and June 18, 1875, were not paid when due; nor is there evidence that the tim'e for the payment of the premium due in either of these years was extended by the agent of defendant with or without its knowledge. Nor does the case show that defendant’s agent had ever given credit to other persons with or without defendant’s knowledge; nor does the case show that the agent was authorized to give credit. The case does not show that defendant knew that its agent agreed to extend the time for the payment of the premium due June 18, 1876, or that defendant knew that its agent had received partial payments in cash and in farm produce; nor does the case contain evidence from which the trial court was justified in holding, as a matter of law, that defendant had received any part of such partial payments. Marvin v. Universal Life Ins. Co., 85 N. Y., 278; Alexander on Life Insurance, 116, 117, 118.

This policy was not “issued or renewed” after the passage of chapter 311, Laws 1876, and it was unnecessary for the defendant to give the notice prescribed by that act.

In Wyman v. Phœnix Mutual Life Ins. Co. (10 N. Y. State Rep., 36) the policy was issued prior to the passage of this act; but after it took effect the policy was forfeited for the non-payment of a premium, and afterwards restored. This was held to be a “renewed policy ” within, the act, and that it should not be thereafter forfeited without giving the notice prescribed by the act. Such is not the case at bar.

Under the evidence, the defendant was entitled to a non-suit, because the plaintiff failed to show title to the policy, and because of the failure to pay the premium due June 18, 1876.

The judgment should be reversed and a new trial granted, with costs to abide the event. ■

Martin, J., concurs in the result.

Hardin, P. J.

(dissenting).—It may be assumed that Alvin’s life was insured for the benefit of his son, George A. Cyrenius, and that the policy was delivered to the latter as beneficiary. 101 N. Y., 115; 5 N. Y. State Rep., 583; Bickerton v. Jacques, 28 Hun, 120.

After he received the policy he delivered it to his father as a gift, and the latter retained it until his death, and it was found among his assets and brought forward by his administrator, as part of his assets with the knowledge and consent of George A., and therefore the plaintiff, as administrator, is the real party in interest, and the one rightfully entitled to enforce the policy in suit. The ownership of the policy was put in question by the pleadings, and the proof of plaintiff’s ownership was not improperly received.

Before the premium of the 18th of June, 1876, became due, Place, the agent, was applied to and notified that it would be inconvenient to pay the whole premium at that. date, and he consented to take fifty dollars towards the premium that would fall due at that time and extend the time of payment. In previous years he had given some credit, and the company had ratified such extension. That-was known to the agent and to the party who was to pay the premium. “We must assume that he (the agent), accounted for it to the company which has neither returned or offered to return the money.” Finch, J., in Haight v. The Continental Insurance Co. (92 N. Y., 51).

The policy had not been forfeited when the .extension was given, and it may be fairly said the agent of the defendant contributed to, if he did not cause the omission to pay all on the day named in the receipt in his hands which he held with the assent of the defendant as its collection agent.

The contract was continuous and for the life of the assured, and the defendant seeks to make out a forfeiture under the terms of its policy. It gave no notice such as required by chapter 341 of the Laws of 1876, which statute was in force June 18, 1876. Wyman v. Phœnix Ins. Co., 10 N. Y. State Rep., 36.

In making out such a forfeiture it has the burden of bringing itself within the exact and literal terms of its language. Here it has taken the money and put it in its coffers for part of the premium, through the instrumentality-of its agent, thus having knowledge of the manner in which he acquired it, and as it did the previous year, it should now be held to be estopped by and bound by his act, and we think the language of Allen, J., in Homer v. G. M. Life Ins. Co. (67 N. Y., 481), should be applied. He said: The forfeiture, the penalty for a non-payment of the annual dues at the day, was for the benefit of the insurers, and could be dispensed with by them; and if waived or agreed to be waived at a time when the other party might have literally performed the contract and prevented a forfeiture by an agreement or a promise to accept performance at a later day, the non-performance of the condition at the day cannot be alleged to defeat the contract and the insurers will not be permitted to insist upon a forfeiture of the policy by reason of such non-performance. This is within the familiar principle that he who prevents a thing being done shall not avail himself of the non-performance he has occasioned.” If the company had shown that it did not receive a portion of the premium, as before stated, as we must assume it did, it might have raised the question more successfully and rightfully as to the power of the agent, and as to the necessity for a written extension. It gave no proof that is at war with the assumption we have made.

It should be held estopped from gainsaying that it took the money and gave a credit; otherwise it took the money in bad faith. ¡

We prefer the former assumption and will not permit ourselves to infer that it intended a fraudulent practice. Van Schoick v. Niagara Ins. Co., 68 N. Y., 434; Bennett v. N. B. Ins. Co., 81 N. Y., 276; opinion by Andrews, J.

We think the party paying premiums had a right to believe, and did believe, Place had authority to give credit, as he did, and, therefore, Walsh v. Hartford Ins. Co., 73 N. Y., 5, does not aid the appellant. My opinion is that the verdict is just and legal.

Judgment and order affirmed, with costs.  