#### The Equitable Trust Company of New York, Appellant, *v.*John F. Gompert, Respondent.

(Supreme Court, Appellate Term,

December, 1911.)

Contracts — Performance of contracts — Sufficiency of performance in general'—Contract to repay advance for insurance premiums. ■■

In an action-by the holder of a written instrument by which the defendant acknowledged having received from a third person a policy of insurance delivered to the latter for the defendant and authorized and requested the person to whom the instrument was directed and delivered to pay the amount of the first premium for the maker of the instrument upon said policy, in order to place the same in force from the date of the instrument, and promised to pay him or his order the amount so advanced as stated in the instrument, where the plaintiff proves the payment by him of the premium specified in the instrument, proof of the mere non-receipt by the defendant of the policy from the third person.mentioned in the instrument is not a sufficient defense to the plaintiff’s cause of action thereon.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of the defendant.

*468McLear & McLear, for appellant.

Max E. Lehman, for respondent.

Lehmae, J..

The defendant on the 17th of October, 1904, signed the- following instrument:

“ Mr. Archibald O. Hatees,

“25 Broad Street:

“ Dear Sir.— I hereby acknowledge having received from Mr. L. L. Squire policy Ho. 1379210, being for $7500 on my life in the Equitable Life Assurance Co. You are authorized and requested to pay the amount of the first premium for me upon said policy in order to place the' same in force from this date, and I promise to pay to you or to your order the amount so advanced, to wit, $275.25.as follows:

“Cash herewith paid................ $150 00

“April 1, 1905.................-____ 62 62

“ July 1, 1905...................... - 62 63

275 25”

The plaintiff at the trial showed that 'Haynes paid the premium and that the policy went into effect. It also showed that Haynes assigned this instrument to plaintiff.

The defendant testifies that he did not receive the policy from Squire and urges that this is a defense to the action. Of course, if this instrument is negotiable and the plaintiff is a holder in due course, it holds it free from defenses available to prior parties among themselves, I do not think that we need in this case, however, to determine whether or not the instrument is negotiable because even if it is not negotiable the defendant has failed to prove his. defense. He has acknowledged receipt of the policy and authorized Haynes to pay the premium and put the policy in force. Even if defendant did -not receive the policy from Squire, since Haynes has done all that he was required to do he is entitled to payment under the contract.

*469The defendant also -urges that the Statute of Limitations has run against this' demand. The cause of action for the amounts payable on April 1 and July 1, 1905, accrued only on those dates, and the period of limitation has not expired since those dates.

The judgment in favor of the defendant should be reversed and a new trial ordered, with costs to appellant to abide the event.

Giegerich and Pendleton, JJ., concur.

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