Opinion
279 A.D. 1112 112 N.Y.S.2d 509 GENEVIEVE W. BOARDMAN, as Administratrix of the Estate of RACHEL WHITCOMB, Deceased, Respondent, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Appellant. Supreme Court of New York, Third Department. May 7, 1952
Defendant has appealed from a judgment of the Warren Trial Term of the Supreme Court, in plaintiff's favor in the sum of $787.92. On April 21, 1939, the defendant issued to plaintiff's intestate, Rachel Whitcomb, its policy of insurance in the sum of $500 upon the payment on the 21st day of each month a premium in the sum of $3.09. The insured died intestate on the 7th day of September, 1949, and the plaintiff, her daughter, was duly appointed administratrix of her estate. Proofs of death were submitted to defendant and demand made for payment of the amount due. Defendant refused to pay on the ground that the policy had lapsed but did offer in satisfaction thereof the sum of $256.25, being the amount of paid up insurance, pursuant to an election made by the insured at the time the policy was issued. Defendant contended that the policy lapsed because of the failure to pay the premiums which became due on the 21st day of July, 1949 and the 21st day of August, of the same year, after the expiration of the thirty-one days' grace period. Defendant's agent, a man named Keating, notified plaintiff on the 29th day of August, 1949, that premiums aggregating $6.18 were due on the policy and he made request for payment. On the 30th day of August a money order for the correct amount, together with a letter was delivered to the defendant at its office at Glens Falls, New York. The defendant accepted and retained the premium. No attempt was made by the agent, by those in the local office at Glens Falls or by defendant itself to take any steps to have the policy lapse until the 14th day of October, 1949, long after the insured's death. The proof indicates that defendant waived any forfeiture that may have occurred in the payment of premiums. Both sides moved for a direction of a verdict, but when defendant's motion in this respect was not granted defendant was not deemed to have waived its right to trial by jury on the issues. (Civ. Prac. Act, § 457-a.) Although defendant excepted to the granting of plaintiff's motion for a direction of a verdict and to the denial of its own motion for a direction, on this appeal it does not raise the question that there was any triable issue left for the jury, or that it should have gone to the jury on the issue of waiver, but argues for the disposition of these questions as a matter of law. In view of this limitation by appellant of the question presented, we treat the direction of a verdict for the plaintiff as if it were the verdict of the jury returned without a direction and this we would regard as supported by substantial evidence of waiver. The evidence supports the judgment under review. Judgment affirmed, with costs.
Foster, P. J., Heffernan, Bergan and Coon, JJ., concur; Brewster, J., dissents.