Gould v. Equitable Life Assur. Soc. of the United States

• Decision Date: 10 May 1921
• Citation: 231 N.Y. 208,131 N.E. 892
• Parties: GOULD v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: New York Court of Appeals Court of Appeals

231 N.Y. 208

131 N.E. 892

GOULD

v.EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

Court of Appeals of New York.

May 10, 1921.

Action by Alice E. Gould against the Equitable Life Assurance Society of the United States. From a judgment of the Appellate Division (188 App. Div. 318,177 N. Y. Supp. 165) reversing on the facts and the law a judgment of the Trial Term, a jury having been waived, dismissing the complaint upon the merits, defendant appeals on stipulation for judgment absolute in case of affirmance pursuant to Code Civ. Proc., § 190; a new trial having been ordered.

Judgment of the Appellate Division reversed, and that of Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, Third Department.

Alexander & Green, of New York City (Charles W. Pierson, of New York City, of counsel), for appellant.

Milford D. Whedon, of Granville, for respondent.

CRANE, J.

This action was brought on a policy of insurance for $3,000 on the life of Joseph E. Gould in the name of his wife as beneficiary. The policy was dated back to March 23, 1914, in order that the insurance might be granted as of the age of 32. Among the terms and conditions in the policy are found the following:

‘This insurance is granted in consideration of the payment in advance of one hundred and twenty-two and 67/100 dollars and the payment annually thereafter of a like sum upon each twenty-third day of March, until twenty full years' premiums shall have been paid, or until the prior death of the insured.

‘Grace.-A grace of thirty-one days, subject to an interest charge at the rate of 5 per cent. per annum, will be granted for the payment of every premium after the first, during which period the insurance hereunder shall continue in force. * * *

‘Except as herein expressly provided, the payment of any premium or installment thereof shall not maintain this policy in force beyond the date when the succeeding premium or installment thereof becomes payable.

‘Reinstatement.-If this policy shall lapse in consequence of the nonpayment of any premium when due, it may be reinstated at any time upon the production of evidence of insurability satisfactory to the society, and the payment of all overdue premiums, with interest at 5 per cent. per annum, and upon the payment, or reinstatement of any indebtedness to the society, secured by this policy, with interest.’

The first premium amounting to $122.67 was paid. The second premium became due March 23, 1915, but was not paid at that time. On February 13, 1915, the regular form of notice, required by section 92 of the Insurance Law (Cons. Laws, c. 28), was duly mailed to the insured. Section 92 requires that this notice shall state that unless such premium, interest, installment, or portion thereof then due shall be paid by or before the day it falls due, the policy and all payments thereon will become forfeited and void, except as to the right to the surrender value or paid-up policy as in the law provided. The notice sent the insured contained this statement: ‘That unless the premium was paid the policy would become forfeited and void.’

This second premium, becoming due as above stated on March 23, 1915, had 31 days of grace, but before its expiration and on April 22, 1915, the insured applied for and obtained a written extension of 60 days of time for the payment. Like extensions were given until the final day of payment was fixed as July 23, 1915. This final extension was by written agreement which provided:

‘After such extended date, all rights under the policy shall be the same as if this agreement and deposit had not been made.’

The time for payment of this premium was not further extended beyond July 23, 1915. Prior to that date the defendant had sent another notice to the insured stating that the last day of payment for the premium on his policy was July 23, 1915, and asking his prompt attention to the matter. On this notice was printed the words, ‘Please return turn with remittance.’ On March 29, 1916-eight months after the last notice-the insured returned the notice with this written on the back:

‘Please return the receipt to Joseph E. Gould, Granville, N. Y. P. O. Box 782, and oblige Joseph E. Gould.’

Inclosed was a check of $99.92, the amount of the premium less the sums paid for the extensions above mentioned.

Immediately upon the receipt of this remittance the Equitable Life Assurance Society wrote Gould at the address mentioned the following letter:

‘Mr. Jos. E. Gould, Box 782, Granville, N. Y.

Dear Sir: We are in receipt of your remittance for $99.92 for premium which was due in March, 1915, on policy No. 1892687. Before the Society will consider the restoration of this policy, they will require a certificate of continued good health on the accompanying form. Dr. Willis A. Tenney of Granville, our examiner, will be very glad to fill this in for you and we will appreciate it if you will get in touch with him at your earliest convenience.

‘Yours very truly,

‘J. W. Clark, Jr.,

‘Agency Cashier.’

On May 1, 1916, not having heard from the insured, the defendant again wrote the following letter:

‘Mr. Jos. E. Gould, Box 782, Granville, N. Y.

Dear Sir: We wrote you under date of March 29th acknowledging receipt of your remittance of $99.92 on account of premium of policy No. 1892687. In that letter we advised that the society would require a certificate of continued good health before considering the restoration.

‘This certificate has not yet reached us and we will appreciate it if you will get in touch with Dr. Tenney, our examiner at Granville, at your earliest opportunity.

‘Yours very truly,

‘J. W. Clark, Jr.,

‘Agency Cashier.’

To these communications Gould paid no attention and no certificate of good health was furnished. Shortly thereafter, and on ...