
    VAN BOKKELEN v. MASSACHUSETTS BEN. LIFE ASS’N.
    (Supreme Court, General Term, First Department.
    November 15, 1895.)
    1. Benefit Life Association—Fobfeitube of Membership—Nonpayment of Assessments.
    A benefit life association which has habitually and without objection allowed calls to be paid by checks mailed by a member on the last days named therein cannot declare a forfeiture of his membership for a failure to comply with a recent condition printed in fine type in its form of mortuary notice, requiring remittances to reach the home office on or before the limitation named therein, where it appears that this was the only notice of the changed conditions sent to plaintiff, and he testifies that he did not see it, and never heard of it till the trial of his action to compel defendant to reinstate him in membership.
    2. Same—Action on Policy—Who may Sue.
    An assignee for life of the absolute title to policies may sue thereon in her own name.
    Appeal from special term, New York county.
    Action by Caroline B. Van Bokkelen against the Massachusetts Benefit Life Association to procure an adjudication that certain certificates of membership issued to one Spencer D. C. Van Bokkelen, plaintiff’s father, and by him assigned to plaintiff, are valid and subsisting obligations of defendant, and to compel defendant to reinstate said Spencer D. C. Van Bokkelen in his membership, which had been declared forfeited for nonpayment of assessments. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    J. K. Hayward, for appellant.
    Alexander S. Bacon, for respondent.
   O’BRIEN, J.

The defendant in 1881 issued two policies of insurance on the life of Spencer D. C. Van Bokkelen. For 13 years he continued to pay the premiums every 2 months on these policies. About the 1st of January, 1894, the defendant sent him a notice of mortuary call to be paid on or before February 1, 1894. Although there is a dispute as to whether the mailing of a check in payment thereof was made on the 1st or 2d day of February, the learned trial judge, on conflicting evidence, concluded (and with such conclusion we see no reason to interfere) that on the 1st day of February a check for the assessment was mailed by depositing such check in a New York post-office letter box, inclosed in a postpaid envelope directed to the defendant in Boston. From time to time during the 13 years payments had been thus made, although the contract required that they should be made at the home office in Boston. It further appeared that at some time just prior,, but how long before does not appear, the form of notice was changed, and a statement was placed in fine print in the coupon which was part of the mortuary notice, and which coupon is returned to and retained by the defendant, that the remittances must reach the home office in Boston on or before the expiration of the time limit named in the notice. Such statement was not contained in the body of the notice, which is retained by the insured as a receipt for his premium, and Mr. Van Bokkelen swears that he never knew of this change in the form of notice until he heard of it in court on the day of the. trial. In disposing of this question the learned trial judge said:

“The notice says that the call must be paid on or before February 1st, and the express notice is that it may be made by check. The course of dealing between the parties would settle what was meant by this notice, and when it appears that the company was in the habit of accepting, as a payment, checks mailed upon the day that the amount was required to be paid, I think there must be some express and explicit notice to the assured that it required a different method of payment, before they could insist upon a forfeiture where the usual method had been adopted. And the mere fact that on a coupon annexed to the notice was printed, in small letters, a statement that the company would require that the remittances must reach the home office on or before the expiration of the time limit in the notice, was not sufficient notice to the assured to justify the company in changing its method that had been adopted for making the payments. Good faith to the assured required that he should be distinctly informed that his policy would be forfeited unless he changed the method by which, with the assent of the company, he had been in the habit of making his payments. It appears in this case that the assured had paid promptly the calls under these policies for many years, and it is a harsh enforcement of a technical provision that would forfeit these policies after such payments because of the difference of one day in the receipt of the premium, and I think there is presented a fair case for the interposition of a court of equity.”

We might well have affirmed this judgment upon the opinion of the court at special term, but it has been forcibly insisted that there is no legal warrant for the conclusion thus reached, and to show that in this the appellant is mistaken it is only necessary for us to refer to one or two decisions. In Insurance Co. v. Eggleston, 96 U. S. 572, Judge Bradley said:

“We have recently, in the case of Insurance Co. v. Norton, 96 U. S. 234, shown that forfeitures are not favored in the law, and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, on which the party has relied and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads the party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. The company is thereby estopped from enforcing the forfeiture.”

The rule thus stated was not only applied in the cases cited, but in our own state we have many similar instances of its application, from but one of which it will be necessary to quote, and that only because it is, in many of its features, analogous to the case at bar. We refer to the case of Kenyon v. Association, 122 N. Y. 247, 25 N. E. 299. The certificate of insurance there provided that if any assessment was not paid within 10 days after proper notice the certificate should cease and determine. There was indorsed upon it a by-law that any member failing to pay his assessment within 10 days after notice would forfeit the certificate of membership and all benefits therefrom, but that he might be reinstated within 30 days after notice, if allowed, by paying all arrearages. On March 27, 1885, defendant’s secretary mailed to the assured a notice that an assessment was due and payable on or before April 6th. It also stated that assessments were payable at defendant’s office in cash, by sight draft, or money order payable to defendant’s secretary. Plaintiffs proved that:

“On April 4,1885, he [the assured] sent by mail from Watertown his check, •drawn upon a bank there, for the amount, to the defendant’s secretary at Cincinnati, payable to the order of the latter. It was sent sufficiently early to reach by due course its place of destination within the ten days mentioned in the notice, but it was not received by defendant’s secretary. If it had reached him within that time he would not have been required to accept it in performance of the contract, as represented by its terms before mentioned; but the course of dealing between the parties had been such that the member was at liberty to assume that his check upon the bank was receivable by defendant, because it had uniformly and without objection received his checks in payment for assessments upon the certificate. So far the defendant had waived strict performance, and permitted the member to pay in his checks as a substitute for the method of payment mentioned in the notice. It appeared that, within a little more than a year and a half preceding this assessment, Kenyon had sent to the secretary fifteen checks drawn by him, as this was, upon the same bank at Watertown, in payment of assessments, and that they were so received. But it is contended that the receipt at the home office of the defendant of that which the assured was permitted to deliver in payment was essential to accomplish it; that this is the rule where nothing appears to the contrary (Insurance Co. v. Davis, 95 U. S. 435); and such was the effect of the contract in question, and, as we have seen, not modified by the terms of the notice of assessment.”

Upon these facts it was held that, from the course of dealing adopted by the defendant in respect to the payments, the assured might fairly and in good faith have been led to suppose that defendant’s requirements as to payments were satisfied by mailing the check. See, also, Titus v. Insurance Co., 81 N. Y. 410; Roby v. Insurance Co., 120 N. Y. 510, 24 N. E. 808; Miesell v. Insurance Co., 76 N. Y. 115; Palmer v. Insurance Co., 84 N. Y. 71. It appearing then that Mr. Van Bokkelen mailed his check on the 1st day of February, 1894, the last day called for in the notice,—a thing that he had frequently done before,—and notice not having been properly given, and therefore no knowledge having been brought to the assured of any change in its rule as to the method of payment, it would be inequitable to permit the defendant to forfeit the policies.

The only other question is as to the right of plaintiff to maintain this action. It was shown that by the assignment the absolute title to the policies was vested in the plaintiff while she lives, and during that time no other person has any interest therein; and even if we assume what does not appear, that there were other parties who, in the event of her death, might have an interest in the policies, this would not require that they should be brought in. We think, therefore, that, without joining either them or Mr. Van Bokkelen, the plaintiff could maintain this action. Judgment affirmed, with costs. All concur.  