McDougall v. Provident Sav. Life Assur. Soc. of New York
| Decision Date | 25 October 1892 |
| Citation | 32 N.E. 251,135 N.Y. 551 |
| Parties | McDOUGALL et al. v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fifth department.
Action by Jane A. McDougall and others, as administrators, etc., against the Provident Savings Life Assurance Society of New York, on a policy on the life of plaintiffs' intestate, issued by defendant. At the circuit the court directed a verdict in plaintiffs' favor, and defendant's exceptions on its motion for a new trial were directed to be heard at the general term in the first instance. From an order of the general term (19 N. Y. Supp. 481) denying the motion for a new trial and ordering judgment on the verdict, defendant appeals. Reversed.
David B. Hill and Edwin B. Smith, for appellant.
J. H. & C. W. Stevens, for respondents.
This action is to enforce the payment of the sum secured in a policy of insurance issued by the defendant to the plaintiffs' intestate on July 23, 1884. By its terms the defendant promised to pay to the assured, or to his legal representatives, the sum of $10,000 within 90 days after satisfactory proof of his death, ‘provided such death shall occur before 12 o'clock noon on the 23d day of July, 1885.’ Defendant further promised ‘to renew and extend this insurance during each successive year from the date thereof, upon condition that the assured shall pay on or before the 23d day of July in each successive year during the continuance of the contract the mortuary premium, * * * and also an expense charge of three dollars on each $1,000 insured therein; the payment of said annual mortuary premium and the annual expense charge being the consideration for the continuance of the insurance in each successive year,’ etc. It is plain that this policy was a contract for an insurance for the term of one year only, providing, however, by its terms for its renewal for successive years upon compliance by the assured with the conditions named. Renewals were effected during the years 1885, 1886, and 1887, but the assured failed to make those payments on July 23, 1888, which were required in order to extend his policy over another year, and he died in November following. His administrators have rested, and must rest, their right to a recovery upon the proposition that the defendant did not give to the assured the form of notice prescribed by a statute of this state as a prerequisite to the right to declare a policy of life insurance forfeited. The defendant, in support of its appeal from the judgment which the plaintiffs have succeeded in recovering, presents two grounds: It denies that the statute in question applies to such a policy, and it insists that, if it does, the notice which was in fact given to the assured was sufficient. That statute (being chapter 321, Laws 1877, chapter 341, Laws 1876) provides that Omitting the description of the part of the notice for the payment of an unpaid premium, and declaring a forfeiture if the notice is not complied with, the final proviso reads: ‘Provided, however, that if a notice stating when the premium will fall due, and that, if not paid, the policy and all payments thereon will become forfeited and void, served in the manner hereinbefore provided, at least 30 and not more than 60 days prior to the day when the premium is payable, shall have the same effect as the service of the notice herein before provided for.’
Upon the construction of this statute the appellant's counsel have made an elaborate argument to the effect that it cannot be...
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