#### McCLUSKEY v. NATIONAL LIFE ASS’N OF HARTFORD.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Payment—Tbansmission by Mail.

Where an insurance company authorizes the insured to send a premium by mail, such premium is paid when the letter containing it is deposited in the post office, addressed to the company.

Appeal from circuit court, Washington county.

Action by Sarah A. McCluskey against the National Life Association of Hartford on a policy of life insurance. From a judgment in favor of plaintiff, entered on a trial before the court without a jury, defendant appeals. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Shuart & Sutherland (W. A. Sutherland, of counsel), for appellant.

O. A. Dennis, for respondent.

HERRICK, J.

The plaintiff was the beneficiary of a policy of life insurance, issued to Thomas McCluskey. The defendant is a foreign insurance company, having its principal or home office at Hartford, Conn. It seems to have had no agent at Whitehall, in this state, where the said Thomas McCluskey resided. On the 10th day of September, 1892, the defendant mailed a notice from Hartford to the said McCluskey, notifying him that his bimonthly premium of $7.90 was due and payable on or before the 1st day of October. Inclosed in the notice was an envelope directed to the defendant, which the assured was requested to use in sending his remittance. The notice also directed all checks and post-office orders to be made payable to the National Life Association. On the afternoon of the 1st day of October the assured inclosed said notice, together with a check for $7.90, payable to the order of the defendant, in the en*932velope received by him from the defendant, and deposited it in the post office at Whitehall. It was received at the Hartford post office on October 2, 1892, at 8 p. m. October 1, 1892, was Saturday. On the 3d of October, 1892, the defendant mailed a notice to Thomas McCluskey, calling upon him to forward a certificate as to his health, and that upon doing so his policy would be reinstated. The assured, in response thereto, informed the defendant that he could not truthfully sign the required certificate of health sent him by such company. On the 15th day of December, 1892, the assured, Thomas McCluskey, died. The defendant, among other defenses-to the claim made against it upon said policy, asserted that the policy was forfeited by the failure of the assured to pay the bimonthly premium due October 1st. The law does not favor forfeitures. The defendant directed the assured to send his premium by mail, and his sending it by mail by its direction would be sufficient, even although the money had never been actually received by it. Palmer v. Insurance Co., 84 N. Y. 63; Kenyon v. Association, 122 N. Y. 247-260, 25 N. E. 299. When a person directs money, or the evidence of money,—as checks, notes, or merchandise, ■—-to be transmitted or shipped to him by mail, or by a specified line of carriers, it has always been held that the responsibility of the sender ceased upon his delivering the articles to the specified carrier, and that they were thereafter at the risk of the person who directed them to be sent to him by means of such carrier; that he thereby made the carrier his agent. It may be said, therefore, in this case, that the defendant made the post-office authorities at the place of residence of the assured its agent to receive from him the payment of the premium in question. If it had had an agent stationed at that place, and the assured had given him a check for the amount of the premium in question on the 1st day of October, although the defendant had not received it at its home office until the 2d or 3d, I assume that no question would be raised but what such payment was made in time. If, instead of having a regularly appointed agent at such place, to whom payments could be made, they directed, in lieu thereof, that they should be transmitted by mail, it seems to me that depositing a check in the post office, payable to the order of the defendant, properly enveloped, and directed to it, on the day of payment, is equally as good a payment as though the same check had been deposited on the day of payment with the local agent. Payment was made at the time the money, or that which, under the notice issued by the company, could be given in lieu of money, was deposited with the company’s agent, which in this particular case was the United States postal authorities. It has been held that a contract by correspondence was completed when the party to whom the promise was made placed a letter in the post office, accepting the terms. Tayloe v. Insurance Co., 9 How. 390; Patrick v. Bowman, 149 U. S. 411-424, 13 Sup. Ct. 811, 866. Upon the same principle it seems to me that payment was made when the check was deposited in the post office.

The defendant upon this appeal raises the question that in cases of this kind the plaintiff must allege in his complaint, and prove *933on the trial, either that there is a sufficient fund on hand to meet the plaintiff’s claim, or some part thereof, or else that an assessment duly issued would produce a sufficient amount to meet his claim, or some part thereof. Without discussing the question as to whether the rule contended for and supported by the case of O’Brien v. Society, 117 N. Y. 310, 22 N. E. 954, and kindred cases, is applicable to causes of action upon policies of the kind involved in this action, it is sufficient to say that the defendant made no objections to the plaintiff’s complaint upon the trial, but proceeded to trial upon the merits, and did not raise this question, so far as appears in the record before us, either by motion, request to find, or *exception;*and, having failed to raise the question in the trial court, he cannot raise it here. Whitman v. Foley, 125 N. Y. 651, 26 N. E. 725. Judgment should be affirmed, with costs. All concur.