Carter v. Brooklyn Life Ins. Co.

Decision Date05 June 1888
Citation17 N.E. 396,110 N.Y. 15
PartiesCARTER v. BROOKLYN LIFE INS. CO.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from general term, superior court, city of New York.

Suit by Thomas M. Carter against the Brooklyn life Insurance Company to compel it to accept a premium on a policy of insurance, and to reinstate the policy which defendant had assumed to cancel. Judgment for plaintiff Defendant appeals.

Augustus Ford, (William H. Ford, of counsel,) for appellant.

Raphael J. Moses, Jr., for respondent.

RUGER, C. J.

The plaintiff is a resident of the city of Albany, in the state of Georgia, and the defendant a life insurance company located and doing business in the city and state of New York. In the year 1870 the defendant issued and delivered to the plaintiff an insurance policy upon his life for $5,000, ‘in consideration of the representations and agreements contained in the application therefor, and of the sum of twenty-one dollars and ninety-five cents to them in hand paid, * * * and of the annual payment of eighty-two dollars and eighty cents, to be paid on or before the 25th day of October in each and every year during the continuance of the policy;’ and providing that ‘in case the said Thomas M. Carter shall not pay, or cause to be paid, the premiums, as aforesaid, in cash, on or before the day herein mentioned for the payment thereof, * * * then the said company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease, and be null, void, and of no effect.’ A notice was printed upon the policy, stating, among other things, that ‘premiums must be paid on or before the day when due; * * * and, if the premiums be not settled when due, a policy becomes forfeited;’ that ‘all premiums are due and payable at the office of the company in the city of New York, but, for the convenience of policy-holders residing at a distance, it may be paid to an agent, but only on the production of a receipt signed by the president or secretary, who are alone authorized to sign receipts on the part of the company. * * * In all cases, notices will be sent as regularly as possible, but solely as a matter of courtesy. As these often miscarry from a variety of causes, it is absolutely necessary that a policy-holder should make particular note of the dates when his premiums come due, for the company will not be responsible for any omission or miscarriage of notice.’ The annual premiums upon this policy were regularly paid by the insured to the company from the date thereof to October, 1883; and, upon the non-receipt of the premium for that date, the company declared the policy forfeited, and assumed to cancel the same upon its books. The defendant did not give the plaintiff either prior or subsequent notice of the time when such premium became due, or the place where payable, as provided by chapter 341, Laws 1876, and the amendment thereto by chapter 321, Laws 1877. Previous to the year 1878, the defendant, at the request of the plaintiff, was in the habit of sending receipts, in anticipation of the day of payment, to the Central Railroad & Banking Company at Albany, in Georgia, for collection; and the plaintiff regulary paid such premiums to that company, taking up the receipt therefor held by it. In september, 1876, after the passage of chapter 341 of the laws of that year, the defendant sent the plaintiff, to his address at Albany, Ga., a copy of such law, and a notice thereon indorsed, stating that ‘notices will be sent as required by statute,’ and that ‘all premiums are due and payable at the office in New York.’ These notices were repeated upon all subsequent premium receipts sent to the plaintiff. After this time the plaintiff was in the habit of remitting premiums directly to the company at New York. In each of the years 1878 and 1879 the defendant transmitted notices of the time for the payment of premiums, addressed to Thomas M. Carter, Albany, Ga. In 1880, however, without any authority from the plaintiff, the company assumed to change the address, upon the notices sent to him, from that theretofore issued, to ‘Thos. M. Carter, care of the Central Railroad & Banking Co., Albany, Ga.’ These notices were received by that company, and were regularlydelivered by it to the plaintiff for the years 1880, 1881, and 1882, and he regularly paid the annual premiums on the policy at the company's office in New York for those years. The notice for the year 1883 was not, however, delivered to the plaintiff. Upon this state of facts several questions arose upon the trial, among which the material ones are: (1) Whether the law of 1876, requiring notices to be sent to policy-holders, applies to this policy; (2) whether the assurance expressed by the defendant upon its notices thereafter sent to the plaintiff, that it did so apply, authorized him to act in reliance thereon, and estopped the defendant from claiming that it did not apply to such policy; and (3) whether the notice sent by the defendant in 1883 conformed, in respect to the manner of its transmission, to the requirements of such law.

It is contended by the appellant that the act applies only to policies ‘issued or renewed’ after its passage, and that a policy...

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