Phelan v. Northwestern Mut. Life Ins. Co.
| Decision Date | 26 March 1889 |
| Citation | 20 N.E. 827,113 N.Y. 147 |
| Parties | PHELAN v. NORTHWESTERN MUT. LIFE INS. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, Second department.
Action by Ellen Phelan, administratrix, etc., of George F. Phelan, deceased, against the Northwestern Mutual Life Insurance Company, on a policy of insurance issued to her intestate. Judgment for defendant, which was affirmed by the general term, and plaintiff again appeals.
R. J. Moses, Jr., for appellant.
Bristow, Peet & Opdyke, (William Peet and David Willcox, of counsel,) for respondent.
The defendant is a life insurance company, organized under the laws of Wisconsin, but doing business in the state of New York. On the 31st of March, 1880, it issued a policy of insurance upon the life of George P. Phelan. The premiums were payable on or before the 31st day of March, June, September, and December in each year, and the policy contains a provision that, if the premiums are not paid at the times mentioned, the policy shall cease and determine. The premium that became due December 31, 1882, was not paid. It was tendered to the company about 2 o'clock on the 15th of January, 1883, but was refused. The insured died on the night of that day. The plaintiff is his administratrix, and sues upon the promise contained in the policy to pay the sum assured in 60 days after notice and proof of death of the insured. It is obvious upon the facts so far stated that no recovery could be had, for the condition upon which the defendant was to be liable had not been performed; but the plaintiff relies upon the statute of this state regulating the forfeiture of life insurance policies, (Laws 1877, c. 321,) and claims to enforce the policy upon the ground that the defendant failed to do that which the statute exacts as a condition of forfeiture. The statute ( supra) declares that no life insurance company doing business in this state shall have power to declare forfeited or lapsed any policy thereafter issued by reason of non-payment of premium, unless, after it becomes due, a notice, stating the amoung of such premium, the place where it should be paid, and the person to whom the same is payable, shall be duly addressed and mailed to the person whose life is assured, at his last-known post-office address, postage paid by the company, and further stating that unless the premium then due shall be paid to the company, or its agent, within 30 days after the mailing of such notice, ‘the said policy, and all payments thereon, will become forfeited, and void.’ And the statute provides that, in case such payment is made within the 30 days limited therefor, it shall be deemed a full compliance with the requirements of the policy in respect to the payment of premium, and declares that no such policy shall in any case be forfeited until the expiration of 30 days after the mailing of such notice. There is no pretense that this notice was given, but, on the contrary, the argument of the defendant is to the effect that it did another thing which the statute makes equivalent thereto. As to that the provision is ‘that 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 above stated,’ 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 notice before provided for. That such notice had been given was a fact to be established by the defendant before its defense could be maintained, and whether it was so established is the only question of this appeal. The defendant relies upon a paer found after the death of the insured among his effects, and reading as follows:
‘OFFICE OF THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY.
‘MILWAUKEE, WIS., November 1, 1882.
‘ George F. Phelan, 37 Barclay Street. The 4 qr. premium of $17.40 on your policy No....
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