
    Annie Wolarsky, Respondent, v. New York Life Insurance Company, Appellant.
    First Department,
    June 14, 1907.
    Insurance —proof of notice of forfeiture —weight of evidence.
    The mailing of the notice of forfeiture required by section 92 of the Insurance’ Law may be shown by the direct testimony .of agents of the corporation authorized to mail such, notice, although there were many agents engaged in the various steps of mailing notices. Under the circumstances such evidence is the best evidence which can be produced.
    The requirement of section 93 of the Insurance Law is satisfied if the notice be mailed whether actually received by the insured or not.
    Evidence in an action to recover on a policy of life-insurance examined and held, not to sustain a verdict based on a finding that the insurer failed to mail notice of forfeiture.
    Appeal by the defendant, the New York Life Insurance Company, from a judgment ’of the Supreme Court in favor of the plaintiff, entered in the' office of the clerk of the county of New York on the 30th day of November, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of December, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      John KirMahd OlarJc, for the appellant.
    
      James A. Douglas, for the respondent.
   Houghton, J.:

The action is upon a policy of insurance issued by the defendant upon the life of Harry Wolarsky on the 5th day of January, 1905, •payable on. his death to this plaintiff. The premiums were- payable semi-annually on the fifth days of July and January following, and their non-payment rendered the policy void. The insured died August 21, 1905.

The. defence1 is that the premium due the previous fifth day of July was not paid. The contention of the plaintiff is that even if this be true, the defendant-did not mail to the insured the forfeiture notice required by seption 92 of the Insurance Law (Laws of 1892, chap. 690, as amd. by Laws of 1891, chap. 218), which was necessary to be done in order to permit the-defendant to declare the. policy forfeited for such non-payment. That section provides that “ Mo life insurance corporation doing business in this- Staté shall within one year after the default in payment of any premium * . * ' * declare forfeited or lapsed ■ any policy, * * * nor shall any such policy be forfeited or lapsed by reason of non-payment when due of any premium * * * unless a written or printed notice stating the amount of such premium * * * due on such policy, the place where it shall be paid, and the person to whom the same is payable, shall have been duly addressed and mailed tb .the person whose life is insured * ■ * * at his ór her last known post-office address in this State, postage paid by the corporation,-'" * * * at least fifteen and not more than forty-five days prior to the day when the same is payable.”

On the trial the defendant assumed the- burden of proving, both the non-payment of the premium and the mailing of the forfeiture notice. The defendant proved that the premium had -not been paid, and the.plaintiff introduced no evidence that such was not-the fact. The'main issue litigated Upon the trial was as to.'whether the-forfeiture notice had been mailed.

• The address designated by the insured to- which notice should be sent to him was 58 Mott street,. New York city. On the 1st of May, 1905, the insured ceased doing business at this address and moved to 60 East Broadway, Mew York city, where he lived until June eighth following, when' he moved to Jersey City, M. J., where he resided until his death.

The section requiring the mailing of the forfeiture notice, in. order, to enable the company to assert, within the first year of the policy’s existence, that it has, been forfeited for the non-payment of premiums, provides that “the affidavit of any officer, clerk, or agent of the corporation, or of any one authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy, shall be presumptive evidence that such notice has been duly given.”

The defendant introduced in evidence an affidavit of the mailing of the notice to the insured which it claimed conformed to the requirements of the statute. There may be some question whether the affidavit was proper in form, but whether it was or. not is immaterial because the defendant, followed it by common-law proof that the notice required by the statute was mailed on -the 12th day of June, 1905, to the insured at 58 Mott street, Mew York city. The evidence of mailing embraced the testimony of the clerks who checked and rechecked the notices sent out on that day, and who addressed the envelopes containing them, and sealed and mailed them. It is true that a large number of notices, were sent out and that one person did only a part of the work. Taking the testimony of the office force as a whole, however,' it satisfactorily established that the notice in question was in fact mailed to. the insured at the address which he had designated.

To meet this proof the plaintiff attémpted to show that of the mail addressed to the insured at 58 Mott street, only one letter was from the defendant, and-that that one was the circular letter inquiring why the insured had failed to pay the premium on his policy when-it was due. . • > ■

Some circumstances, appear in the testimony of the plaintiff’s witnesses which might be interpreted as establishing that the notice of June twelfth'was delivered at Mott street and forwarded to the insured .at Jersey City and received by him. But whether the.evidence be so viewed or not, we think the evidence on the part of the defendant that the notice was actually mailed, was so preponderating that the finding of the jury to the contrary was against the weight of evidence, and that the motion for a new trial should have been granted upon that ground. • . .

The statute was satisfied if the notice was mailed, whether it was actually received by the insured or.not. Mecessarily, in the prepaid ingand mailing of the large number of notices which life insurance companies must send to their policyholders, a number of different persons must be employed in the various steps of preparing and. mailing. The evidence which the defendant produced was the best of which it was capable, and of so satisfactory a character that it should have been heeded by the jury. This, as shown by their verdict,'-they failed to do, and the judgment and order should he. reversed and a hew trial granted, with cost's to the appellant to abide the event. • . ' .

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  