Hamilton Doney, as Administrator, etc., of Jennie E. Doney, Deceased, Appellant, v. The Prudential Insurance Company of America, Respondent

Hamilton Doney, as Administrator, etc., of Jennie E. Doney, Deceased, Appellant, v. The Prudential Insurance Company of America, Respondent. Insurance—when a default occurs in the payment of weelcly premiums—when a forfeiture is claimed further payments need not he made. A policy of life insurance contained the following provision: “ The weekly premium stated in said schedule shall be paid to an authorized agent of the company on or before every Monday during the continuance of this contract. * * * If for any reason the premium is not collected by the agent when due, it shall be the duty of the policyholder before the said premium shall be in arrears four weeks to bring or send said premium to the home office or the company’s agent.” October 15, 1900, the premiums which became due upon the policy upon Monday, October 1, 1900, were paid. November 5, 1900, the premiums which had become due upon the policy up to that time were tendered to the insurance company, but the latter declined to accept them, claiming that the policy had lapsed. Held, that as the premiums due upon the 1st day of October, 1900, had been fully paid, no further premiums became due until October 8, 1900; That the premiums which became due on the 8th day of October, 1900, would not be four weeks in arrears until the close of the 5th day of November, 1900, and that, consequently, the tender made upon the latter day was timely; That the claim of forfeiture advanced by the insurance company excused the beneficiary from the payment or tender of further premiums, and that, in an action brought after the insured’s death to recover upon the policy, the amount of such further premiums might be deducted from the face of the policy. Appeal by the plaintiff, Hamilton Doney, as administrator, etc., of Jennie E. Doney, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in tne office of the clerk of the county of Saratoga on the 19th day of January, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Saratoga Trial Term, and also from an order entered in said clerk’s office on the 22d day of January, 1904, denying the plaintiff’s motion for a new trial made upon the minutes. Edgar T. Brackett and Hiram C. Todd, for the appellant. John Foley, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: The action is brought to recover upon two policies of life insurance issued by the defendant upon the life of Jennie E. Doney, the plaintiff’s intestate. At the trial the complaint was dismissed upon the ground that the policies had lapsed by reason of non-payment of premiums within the time stipulated by the policies. In the first policy it is provided that “ the weekly premium stated in said schedule shall be paid to an authorized agent of the company on or before every Monday during the continuance of this contract. * * * If for any reason the premium is not collected by the agent when due, it shall be the duty of the policyholder before the said premium shall be in arrears four weeks to bring or send said premium to the home office or the company’s agent.” In the second policy is found the same provision. It is conceded that upon the fifteenth day of October the premiums due upon both policies upon Monday, the 1st day of October, 1900, were paid. Upon the fifth day of November the husband of Jennie E. Doney offered to the company the sum of three dollars and seventy-five cents, which was sufficient to pay the premiums due up to that time upon these policies, together with other policies which he held upon lives of other members of his family. It was then insisted that these policies had lapsed for non-payment of the premium. This claim was sustained by the trial court, who dismissed the plaintiff’s complaint. The trial court was in error in holding that the policies had lapsed upon the fifth day of November. The premiums due upon the first day of October were fully paid. No premium was then due until the eighth day of October. That premium could be paid at any time upon that day. Permission to pay that premium at any time before the same was four weeks in arrears is clearly given by the contract. The moneys due upon the eighth day of October had not been four weeks in arrears until the close of the fifth day of November, and the plaintiff, the husband of the deceased, had the right, therefore, to pay the premiums upon that day, thereby continuing the policies in force. The claimed forfeiture excuses the payment or tender of further premiums which may be deducted from the amount found due from the face of the policy. (Meyer v. Knickerbocker Life Ins. Co., 73 N. Y. 516, 528; Denison v. Masons' Accident Association, 59 App. Div. 299.) All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.