#### Katie Popovitz, Respondent, *v.*United States Health and Accident Insurance Company, Appellant.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Insurance (accident) — payment of premiums — lapsing of policy of.

Where the premiums on a policy of accident insurance, having no existence except from month to month, are not paid as provided in the policy, it lapses.

Where the premium on such a policy, due October first, was not paid until October eleventh, no recovery can be had for an accidental injury happening between the day the premium was due and 12 o’clock noon of the day following the date of payment.

Appeal by the defendant from a judgment of the City Court of the city of New York entered upon the verdict of a jury in favor of the plaintiff and from an order denying defendants motion for a new trial.

George Murray Hulbert (William J. Lewis, of counsel), for appellant.

Morris Cukor, for respondent.

Seabury, J.

The plaintiff, the widow of one Balas Popovitz, brings this action to recover the amount named in the policy of insurance issued by the defendant to her husband. The policy was issued on the 14th day of October, 1909, and by its terms provided that it' should expire “ on the first day of November, 1909, at twelve o’clock. noon, standard time, at place where countersigned, but may be consecutively renewed from term to term, subject to all of its conditions by the payment of the monthly premium in advance.” The premiums were paid upon this policy according to its terms up to October, 1911. The monthly premium due on October 1, 1911, was not paid until the morning of October 11, 1911. On October 12, 1911, at *149about nine a. m., the assured fell in the hallway of his home and sustained injuries resulting almost immediately in his death. The facts recited were undisputed upon the trial, and from them .we think it conclusively appears that the plaintiff was not entitled to recover under the terms of the policy upon which she sues. The policy provided as follows: “ The acceptance of any renewal premium shall be optional with the Company. If the payment of any premium shall be made after the first day of the month on which it was due, neither the assured nor the beneficiary shall be entitled to recover for any accidental injury happening between the first day of such month and 12 o’clock noon, standard time, of the day following the date of such delinquent payment, nor for any illness originating before the expiration of thirty days after the date of such delinquent payment, nor shall the acceptance of any past due premium or premiums, be a waiver of the requirement that all renewal premiums be paid in advance on the first day of each month. The payment of any past due premium shall not continue this insurance in force beyond the first day of the succeeding month.”

The policy of insurance had no existence except from month to month, upon the payment of the monthly premiums within the time prescribed by the policy. Where the monthly premiums are not paid in the manner provided by the policy, the policy lapses. In the present case, the premium was not paid on the first day of the month, and, under the terms of the policy, no recovery could be had for an accidental injury “ happening between the first day of such month and 12 o’clock noon, standard time, of the day following the date of such delinquent payment.” The present case falls precisely within the terms of the provision of the policy quoted above, and this provision prevents the plaintiff’s recovery. The respondent contends that, as this provision of the policy was not pleaded in the answer, the appellant cannot avail itself of it upon appeal. The complaint alleged the existence of the policy and performance by the assured of its conditions. This allegation of the complaint, the defendant’s answer put in issue. *150This is not a case, as the respondent contends, where it is sought to forfeit a policy already in existence. It is a case where the rights of the assured under the policy did not accrue until a time specified, and before which time arrived the assured was injured. Until the expiration of the time fixed in the policy, the contract of insurance had no existence, and the assured possessed no rights under it which could be forfeited.

It follows that the judgment should be reversed, with costs, and the complaint dismissed, with costs.

Gut and Bijur, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.