#### John T. Baxter, Resp’t, *v.*The Brooklyn Life Ins. Co., App’lt.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

1. Insurance (life)—When failure to fat premium will not invalidate policy—Laws 1877, chap. 331.

A premium became due upon a policy of life insurance on the 24th of August, and insured died September 7th, not having paid it. Defendant’s contract was to pay within sixty days after receipt of satisfactory proof of death “during the life of the policy.” *Held,*that the company was liable under Laws 1877, chap 321, which requires after failure to pay premium that a notice be sent assured giving him thirty days in which to pay, etc.

2. Same.

Before the company could raise the question of nonpayment of the August premium it must show that it had served the notice required by law, as that was essential in order to put insured in default.

8. Same.

It was not necessary, in order to enable the plaintiff to recover, to pay or tender before action brought the premium that was payable August 34th, prior to the death of insured.

(Andrews, Earl and Gray, JJ., dissenting.)

Appeal from the judgment of the general term, fifth department, denying the defendant’s motion for a new trial upon exceptions, and directing judgment for the plaintiff on a verdict.

*N. 0. Moalc,*for app’lt; *Chas. S.*Carey, for resp’t

1

 Affirming 8 N. Y. State Rep., 246.

O’Brien, J.

The plaintiff is the assignee of a policy of insurance upon the life of one Jbel J. Mattison issued by the defendant, dated May 24, 1884, whereby in consideration of a quarter annual premium of $2.96 to be paid upon delivery of the policy and thereafter on the 24th day of August, November, February and May in each year the defendant insured Mattison’s life in the sum of $8,000 payable to his wife, at the office of the company, in the city of New York, within sixty days after receipt of satisfactory proof of death *during the life of the policy.*The policy was made subject to numerous conditions, none of which are important for the purposes of this appeal except the condition that it should be void upon failure to pay the premium when due. The 'complaint alleged the delivery of this contract to the insured, his death on the 7th day of September, 1884, the presentation to the defendant of satisfactory proofs of death according to the terms of the policy, the refusal of the defendant to pay, and that the insured had made the payments of premium according to his agreement with the defendant. No issue was made by the defendant upon any of the allegations of the complaint, except the averment that the insured had paid the premiums according to the terms of the policy, which it denied, and specially alleged that the premium which became due on the 24th day of August, 1884, had not been paid. On the trial the plaintiff put in evidence the policy and a written assignment by the wife of the insured to him of the claim or cause of action, and *593rested. The defendant moved for a nonsuit on the ground that the insured had failed to comply with the terms ana conditions of the policy by neglecting to pay the quarterly premium stipulated to be paid by the terms of the policy on the 24th day of August prior to the death of the insured. This motion was denied, and the defendant excepted, and the only question in the case is thus presented. The death of the insured occurred within less than four months from the time that the policy was delivered. The production of the policy at the trial proved the payment of the first quarterly premium. But it was essential to the maintenance of the plaintiff's cause of action to show that the policy was a valid subsisting contract at the time of the death of the insured; The policy itself contained the stipulation that it was a contract made and to be executed in the state of New York, and construed only according to the laws of that state. Aside from this provision of the policy, and under general rules of law, this contract was subject to the terms and conditions expressed in chapter 341 of the Laws of 1876, as amended by chapter 321 of the Laws of 1877. This statute was a part of the contract in question, and governed the rights and obligations of the parties in precisely the same way and to the same extent as if all its terms and conditions had been actually incorporated into the policy.

The promise of the defendant was to pay to the beneficiary named the sum of $3,000 upon the death of the insured, in case that event occurred, *during the continuance of the contract.*It, therefore, becomes important to inquire whether the policy in question was in force at - the time of the death of the insured, on the 7th day of September, 1884. If upon that day it was a valid subsisting contract, notwithstanding the failure to pay the premium due on the preceding 24th day of August, then the very contingency upon which the defendant agreed to pay the amount of insurance has happened.

The statute above referred to, Laws 1877, chap. 321, declares that no life insurance company doing business in this state shall have power to declare forfeited or lapsed any policy thereafter issued by reason of nonpayment of premium, unless, after it becomes due, a notice stating the amount of such premium, the place where it should be paid, and the person to whom the same is payable, shall be duly addressed and mailed to the person whose life is assured, at his last known post office address, postage paid by the company, and further stating that unless the premium then due shall be paid to the company ’or its agent within thirty days after the mailing of such notice, the policy and all payments thereon will become forfeited and void. It is also provided by the same section that in case such payment is made within the thirty days limited therefor, it shall be deemed a full compliance with the requirements of the policy in respect to the payment of premium, and it declares that no such policy shall in any case be forfeited until the expiration of thirty days after the mailing of such notice. These provisions are to have full effect, any condition of the policy to the contrary notwith *594standing. There was no proof given at the trial by either party to show whether this notice was served or not. It is obvious that this statute when imputed into the contract modified its conditions in very material respects. The duration and validity of the policy is not then dependent upon payment of the premium on the day named therein, but upon payment within thirty days: after the notice has been given. The condition upon which the-policy can be forfeited, or in any way impaired, as a subsisting contract of insurance, is a failure on the part of the insured to pay the premium within thirty days after notice. The complaint alleges that the insured, up to the time of his death, made the payments on the policy as agreed with the defendant. That he .actually paid the premium necessary to keep the policy in life till the 24th of August, prior to his death, was established and admitted. It was not necessary to prove that he also paid the premium on the 24th of August because the contract was not impaired by a failure to pay on that day, but by a failure to pay within thirty days after the defendant had served the statutory notice.

The statute prescribes this notice as a necessary condition of forfeiture and unless it was served the insured was not in defanlt, because payment within thirty days after notice is to be taken as a full compliance with the conditions as to payment of premium. In the absence of proof on the part of the defendant as to the service of the notice, this allegation of the complaint was sufficiently established within the meaning of the contract as evidenced by the policy and the statute when read together. Before the defend ant could raise any question m regard to the non-payment of the August premium it was necessary for it to show that it had complied with the statute by serving the notice, as this step was essential in order to put the insured in default or to raise any point based on his omission to pay the last quarterly premium. It must, therefore," be assumed in the absence of such notice that the policy in question was in full force at the death of the insured and even if the payment of the last premium was omitted, the obligation and promise of the defendant to pay upon death, dur ing the life of the policy, was unimpaired. The purpose of the statute referred to was to establish a rule which would preserve to the assured the benefit of premiums paid and to prevent the lapse of policies of life insurance without ample notice and an opportunity to save them from forfeiture by payment of prem iums due within the specified time, and at the same time secure to the company, in case it is obliged to pay, the full amount of the premiums which the policy calls for. When the provisions of this statute are adopted in a contract of insurance for the purpose of modifying the forfeiture clause and the other strict conditions contained therein, then this clause and these conditions shall be so construed as to give to the assured the full benefit contemplated, without altering any other provision of the policy, if this can be done without violating any rule of law. When the scope and purpose of the law as deduced from the decisions of this court and the courts of other states involving a construction of *595the same or similar statutes is considered, no good reason is perceived for interfering with the result in this case in the courts below. *Phelan*v. *N. M. L. Ins. Co.,*113 N. Y., 147; 22 N. Y. State Rep., 305; *Carter*v. *Brooklyn Life Ins. Co.,*110 N. Y., 15; 16 N. Y. State Rep., 728; *Carter*v. *John Hancock Life Ins. Co.,*127 Mass., 153; *Boyd*v. *Cedar Rapids Ins. Co.,*70 Iowa, 325.

It was not necessary, in order to enable the plaintiff to recover the sum insured, to pay, or tender before action brought, the premium that was payable on the 24th day of August prior to the death of the insured. If the policy was in full force when the assured died, as we think it was, that event fixed the liability and obligation of the defendant, notwithstanding the omission to make that payment. 27othing remained to be done by the widow of the assured or her assignee except to present to the defendant the proofs of death required by the policy. The death of the assured terminated the contract. The defendant’s promise to pay, if it was not discharged, had matured, and the persons entitled to the benefits of the policy had only to establish the fact of death within the time and in the manner prescribed therein. The contract was kept in life by force of the statute till the contingency upon which payment depended occurred. The death of the assured created the relation of debtor and creditor between the defendant and his widow, and the unpaid premium, with interest from the date when payable, was a claim to be deducted by the defendant from the sum due upon the policy. This puts the defendant in precisely the same position in which it would have been if the premium had been duly paid. *Carter*v. *John Hancock Life Ins. Co., supra.*It was conceded upon the argument in this case that the unpaid premium, and interest thereon, was deducted from the verdict, and therefore no injustice has been done. The judgment should be affirmed.

Andrews, J.

(dissenting)—I dissent from the prevailing opinion in this case. The sole purpose of the statute of 1877, a purpose indicated as well by the title as the body of the act, was to abrogate the rule that the failure to pay the premium on a life policy on the day specified therein created a forfeiture and rendered the policy void. The act, therefore, provided that non-payment of the premium at the day should not work a forfeiture, and that the policy should continue in force, nothwithstanding such omission, until notice by the company and default of the insured for thirty days thereafter to make payment.

The construction placed on the statute in the prevailing opinion, that by its operation the premium does not become due until after notice and expiration of the thirty days, and that meanwhile an action may be brought and a recovery had on the policy, although the premium has not been paid or tendered, is, I think, untenable. The premium is due from the time it becomes due according to the terms of the policy, and remains due at all times thereafter until actually paid, but under the statute default in making payment at the pay day nevertheless leaves the contract of the company subsisting, and an action may, therefore, be *596maintained upon it in case of the death of the insured, unless it is shown that the notice has been given and that the premium was not paid within thirty days thereafter.

But it is a condition precedent to the maintenance of such action, that the plaintiff must before suit brought have paid or tendered the premium unpaid. The plaintiff under the statute of. 1877 is not required, as before, to show that it was paid or tendered on the day fixed in the policy, but he must aver and prove that payment was made at some time before the action was commenced, or else no right of action has accrued. This is in accordance with the well settled rule that in mutual promises the plaintiff, seeking to charge the defendant, must aver and prove performance on his part of that which was the consideration of the defendant’s promise, and this as well where the promise of the plaintiff was to be performed before the day fixed for performance by the defendant, as where the performance of respective promises were concurrent and dependent The construction I have given to the statute of 1877 fully accomplishes its purpose, while relieving it of the anomaly that a contract to pay an insurance on condition of the payment of the premiums may be enforced although the party claiming performance has never paid or offered to pay what was stipulated.

The cases in Massachusetts and other states have, I think, no bearing upon the present one. They were well decided and involved no such question as is presented in this case under the, statute of 1877.

The judgment should be reversed.

Judgment affirmed.

Etjger, Qh. J., Pinch and Peckham, JJ., concur; Andrews, J., reads dissenting opinion, and Earl and Gray, JJ., concur.