Laura Garlick, Respondent, v. Metropolitan Life Insurance Company, Appellant

Laura Garlick, Respondent, v. Metropolitan Life Insurance Company, Appellant. Second Department, November, 1905. Life insurance — evidence of waiver of conditions when complaint alleges performance. When a complaint in an action to recover on a life insurance policy alleges full performance of the conditions of the policy by the insured, it is error to allow evidence that the insurer has waived a condition of the policy that premiums were to be paid at given dates by accepting past due premiums. Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Municipal Court in favor of the plaintiff, entered in the office of the clerk of said court upon the verdict of a jury rendered by direction of the court. Paul Grout, for the appellant. Ernest G. Brower, for the respondent. [MAJORITY — Woodward, J. :] Woodward, J. : This is an action" to recover $500 upon a policy of insurance on the life of the plaintiff’s husband. The plaintiff pleaded that all ■ of the conditions of the contract entitling her to recover had been fully performed, but upon the trial it developed that the conditions of the policy required that payments should be made semi-annually upon a given date, ■ and that the last payment of the plaintiff was not tendered until after the expiration of the time for such' payment, at which time the insured was ill. Over the objection and exception of the defendant the plaintiff was permitted to introduce evidence showing that the defendant had, on previous occasions, permitted payments upon this policy after the expiration of a six months’ period, and recovery was had upon the theory that the defendant had waived the right to insist upon prompt payments., I am, clearly of opinion that it was error to permit the introduction of evidence of waiver, if the evidence was sufficient to establish waiver, under a pleading which alleged full performance of the conditions. (Burr v. Union Surety & Guaranty Co., 86 App. Div. 545, 547, and authorities there cited.) The judgment appealed from should be reversed, with costs, and a new trial ordered, costs to abide the- event.: Bartlett, Hooker, Rich and Miller, JJ., concurred. Judgment of the Municipal Court reversed "and new trial ordered, costs to abide the event.