#### Lawrence Priddy, Appellant, *v.*Albert J. Baum, Respondent.

(Supreme Court, Appellate Term, First Department,

March, 1913.)

Insurance (life) — action to recover first .annual premium on policy —■ delivery of policy.

Where, in an action to recover the first annual premium on a policy of life insurance, defendant’s testimony that he accepted the policy so that he could read it and look it over is corroborated by statements of plaintiff’s assignor in a letter to defendant returning the policy, and the jury find that there was no acceptance of the policy as a binding contract, a judgment for the dismissal of the complaint will be affirmed.

A paper signed by defendant reciting that he had “ received of and accepted from” the agent of the insurance company a policy of insurance could not be deemed an *“*acceptance ” of the policy that was not delivered to him until three days after he had signed the receipt.

Appeal by plaintiff from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, fifth district, dismissing the complaint.

Guggenheimer, TTntermyer & Marshall (Louie Malthaner, of counsel), for appellant.

Richard B. Alder oftt, Jr., for respondent.

Seabury, J.

The plaintiff, an assignee of the Mew York Life Insurance Company, sues to recover the first annual premium upon a policy of life insurance. The complaint alleges that the insurance company delivered to defendant a life insurance policy for $10,000 upon the life of the defendant, and that “ thereupon in consideration of such delivery, the defendant promised to pay to the said Mew York Life Insurance Company on April 3rd, 1912, the sum of $293.40 as a first annual premium upon said policy of *608insurance.” On March 26th, 1912, the plaintiff, as agent for the insurance company, delivered a policy of insurance to the defendant, and the defendant signed a printed form of receipt furnished by the insurance company, which provided as follows:

> *"March*26, 1912.

> “ Received of and accepted from L. Priddy, Agent of the Hew York Life Insurance Company Policy Ho. 4334100 for $10 M. insurance on my life in the above named company, the same being as applied for.

> “Albert J. Baum.”

On the same day, according to the testimony of the plaintiff, the defendant asked that the policy be re-dated as of March 24; 1912, instead of February 24, 1912. The policy was then re-delivered to the plaintiff who sent it to the insurance company. A new policy was delivered to the defendant on March 29, 1912. The policy which was last delivered to the defendant recites that “ this contract is made in consideration of the first premium of $293.40, the receipt of which is hereby acknowledged, constituting payment for the period terminating on the 26th day of March, 1913,' and the payment of a like sum on said date- and on the 26th day of March in every year thereafter during the continuance of this policy.” The evidence referred to above does not establish the liability of the defendant. The policy of insurance acknowledged the receipt of the premium, which, in fact, had not been paid. Under that policy and the circumstances disclosed, there was no promise on the part of the defendant to pay the premium. If the defendant did not pay the premium, the insurance company was under no obligation under the contract. Under the policy, the defendant had the option to pay or not, and if he elected not to pay the premium there was no liability on the part of the insurance company under the policy. The receipt upon which the appellant relies, which recites that the defendant “ received of and accepted from ” the agent of the insurance company a policy of insurance, was not conclusive. The defendant, whose testimony was believed by *609the jury, testified that he accepted the policy so that he could “ read it and look it. over.” The defendant’s statement that he did take it for this purpose is corroborated by a letter written by the plaintiff to the defendant, on June 1, 1912, in which he returns the policy to the defendant, and says, *“*I assume that you have already read this policy and the trust agreement, and for fear that you have not, I am sending it to you thus promptly, so that you can-look' it over at your leisure tomorrow.” There was. thus ample evidence to justify the finding of the jury that the defendant never accepted the policy as a binding contract existing' between himself and the insurance company. Moreover,'The receipt of the defendant given on March 26, 1912, caiinot be deemed to be the “ acceptance ” of a policy not delivered to him until March 29, 1912. We think the circumstances are such that, if the defendant had died, the .plaintiff’s assignor could not have been held liable upon the policy of insurance, and, as it is a poor rule that will not work both ways, the plaintiff should not now be allowed to recover of the defendant the first premium that would have been due if a binding contract had been entered into. There are other circumstances in the case which corroborate the defendant and furnish- additional reasons why the jury should have believed his testimony.

Upon the whole record, we see no reason for disturbing the verdict of the jury.

Gerard and Bijur, JJ., concur.

Judgment affirmed, with costs.