Doney v. Prudential Insurance

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 [24] 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.