We think the evidence conclusively established that there was such a waiver, and that the policy was voluntarily and absolutely surrendered. In Buckley v. Citizens' Insurance Company ( 188 N.Y. 399), after distinguishing the cases of Nitsch v. American Central Insurance Company ( 152 N.Y. 635) and Tisdell v. New Hampshire Fire Insurance Company (155 id. 163), by the fact that the plaintiff had voluntarily and unconditionally surrendered his policy immediately upon receiving notice of cancellation, and holding that such action on the part of the insured was a waiver of his right to treat the policy as in full force until the company paid or tendered to him the unearned premium, the court say: "The one object of the cancellation clause is to place the policy in the custody of the insurance company absolutely and unconditionally. If the insured permits this to be done by his voluntary act, when the company gives notice of cancellation without receiving from it the unearned premium he assents to the cancellation, but can sue for the amount due him." Upon the trial of the case at bar, James F. Murphy, the local insurance agent whose agency issued the policy to the insured, was sworn

Afterward, on March 1, 1898, in the case of Tisdell v. New Hampshire Fire Insurance Company, 155 N.Y. 163, 49 N.E. 664, 40 L. R. A. 765 (see, also, Id., 11 Misc. Rep. 20, 32 N.Y. Supp. 166), it was again held that a tender was a condition precedent to the cancellation of such a policy — the opinion being delivered by Mr. Justice Bartlett, concurred in by Justices Haight, Martin, and Vann, Chief Justice Parker and Mr. Justice O'Brien dissenting, and Mr. Justice Gray being absent. Again, in the case of Buckley v. Insurance Co., 188 N.Y. 399, 81 N.E. 165, 13 L. R. A. (N. S.) 889 (see, also, Id., 112 App. Div. 451, 98 N Y Supp. 622), the Court of Appeals, following the Nitsch and Tisdell Cases, said: "It is a question of vital importance to the insurer and the insured as to the precise meaning of the cancellation clause in the standard policy.

A contrary view was expressed by the Court of Appeals of New York in the case of Nitsch v. Am. Central Ins. Co., 152 N.Y. 635, 13 L.R.A. n.s. 886; and this was followed later by the case of Tisdell v. N.H. Fire Ins. Co., 155 N.Y. 163, 40 L.R.A. 765. This latter case is chiefly noteworthy for the dissenting opinion filed by PARKER, C.J., and which dissenting opinion has been the basis of most of the adjudications since, which have taken the view that the return or tender of the pro rata portion of the unearned premium was not a prerequisite to cancellation. The prevailing view in the Tisdell case, however, that such return or tender was a condition precedent, was reaffirmed by a unanimous court in the case of Buckley v. Citizens' Ins. Co., 188 N.Y. 399, 12 L.R.A. 889; and while the inferior courts of New York have not always followed those cases because of some slight variation of phraseology of the cancellation clause, as in the case of Walthear v. Penn Fire Ins. Co., 2 App. Div. 328, they have never denied the principle, but have sought to distinguish the cases before them by reason of the varied phraseology. The conclusion of the New York Court of Appeals as announced in Tisdell v. N.H. Ins. Co., supra, and reaffirmed in Buckley v. Ins. Co., supra, has been adopted in Davis Lumber Co. v. Ins. Co., 95 Wis. 226; Phoenix Ass. Co. v. Mfg. Co., 92 Tex. 297; Hartford Ins. Co. v. McKenzie, 70 Ill. App. 619; Hartford Ins. Co. v. Cameron, 18 Tex. App. 237[ 18 Tex.Crim. 237][ 18 Tex.Crim. 237][ 18 Tex.Crim. 237] [ 18 Tex.Crim. 237][ 18 Tex.Crim. 237][ 18 Tex.Crim. 237]; Peterson v. Hartford Ins. Co., 87 Ill. App. 572; Peoria Ins. Co. v. Botto, 47 Ill. 516; Aetna Ins. Co. v. Maguire, 51 Ill. 342; Hollingsworth v. Niagara Ins. Co., 45 Ga. 294; Taylor v.

The requirements of the policy as to the cancellation by the insurance company are inserted for the benefit of the assured, and may be waived by him. In the case of Buckley v. Citizens Insurance Co., 188 N.Y. 399, the insured had surrendered a policy of insurance containing a similar clause for cancellation. As in this case the company had failed to pay the unearned premium.

The policies in question are what are known as the New York standard policies, and the general rule formulated in the consideration of the provision as to cancellation hereinbefore copied is that, unless waived, the repayment of the proper proportion of the premium is essential to a valid cancellation and notice without such repayment, or a tender of the amount is ineffectual. Planters' Ins. Co. v. Walker Lodge, 1 White W. Civ.Cas.Ct.App. § 758; Insurance Co. v. Busby, 3 Willson, Civ.Cas.Ct.App. § 101; Hartford Fire Ins. Co. v. Cameron. 18 Tex. Civ. App. 237, 45 S.W. 158; Ætna Ins. Co. v. Rosenberg, 62 Ark. 507, 36 S.W. 908; Manlove v. Comm. Mut. Ins. Co., 47 Kan. 309, 27 P. 979; Van Valkenburgh v. Lenox Fire Ins. Co., 51 N.Y. 465; Griffey v. Insurance Co., 100 N.Y. 417, 3 N.E. 309, 53 Am.Rep. 202; Tisdell v. Insurance Co., 155 N.Y. 163, 49 N.E. 664, 40 L.R.A. 765; Buckley v. Insurance Co., 188 N.Y. 400, 81 N.E. 165, 13 L.R.A. (N. S.) 889; Scheel v. Insurance Co., 228 Pa. 44, 76 A. 507; Taylor v. Insurance Co., 25 Okla. 92, 105 P. 354, 138 Am.St.Rep. 906. Construing the cancellation clause in a policy which is identical with the language of the policies in this case except that five days' notice was required in that case and no time mentioned in this, it was held by the court of Civil Appeals of the Second District (Hartford Fire Ins. Co. v. Cameron, 18 Tex. Civ. App. 237, 45 S.W. 158): "We think that the cancellation clause, taken as a whole, means that when the company elects to cancel the policy it must, upon giving of notice of such intention, at the same time return or tender to the insured or his agent the unearned portion of the premium.

Nevertheless, such cancellation cannot be made without the insurance company returning to the assured any unearned premium which it has received. Buckley v. Citizens Ins. Co., 188 N.Y. 399; Tisdell v. New Hampshire Fire Ins. Co., 155 id. 163; Nitsch v. American Central Ins. Co., 152 id. 635; Stone v. Franklin Fire Ins. Co., 105 id. 543; Van Valkenburgh v. Lenox F. Ins. Co., 51 id. 465; Gorge Hotel Co. v. Liverpool L. G. Ins. Co., 122 A.D. 152: Partridge v. Milwaukee M. Ins. Co., 13 id. 519; affd., 162 N.Y. 597; Marshall v. Reading Fire Ins. Co., 78 Hun, 83. The converse of the proposition must be true, that if the assured has not paid the premium earned the assured is still legally obligated to the company to pay such an amount.

The defendant's position is that the clause above quoted does not require a return or tender of the premium at the time of notice, but only on surrender of the policy, and that in any case the payment of premium to the Perry Company did not constitute a payment to the defendant, and, therefore, a return was unnecessary. The first ground of defense is unavailing under the decision in the case of Tisdell v. New Hampshire Fire Ins. Co. ( 155 N.Y. 163). This was approved in a dictum in Buckley v. Citizens' Ins. Co. ( 188 N.Y. 399). The decision in the Tisdell case, notwithstanding the new form of cancellation clause of the standard policies, above quoted, leaves unaltered the rule which had been laid down by the Court of Appeals in Van Valkenburgh v. Lenox Fire Ins. Co. ( 51 N.Y. 465), to the effect that notice of cancellation, unaccompanied by an actual tender of the unearned portion of premium money paid, is absolutely ineffective. In that case the cancellation clause read: "The insurance may also be at any time terminated at the option of the company, on giving notice to that effect and refunding a ratable proportion of the premium for the unexpired term of the policy."

Judge Vann expressing the views of the dissenters said that he could not see how a mere return of the policy by mail, in response to a notice by which the insurer promised a return of the premium "when" the policy should be surrendered to said insurer, could possibly amount to a waiver of payment as a necessary part of the process of annulment. We have found the same difficulty in reconciling the doctrine of that case — Buckley v. Citizens'Ins. Co., 188 N.Y. 399, [13 L. R. A. (N. S.) 889, 81 N.E. 165] — with the two earlier decisions of that court. The United States circuit court for the southern district of New York construing the same form of contract in Schwarzchild Sulzberger Co. v. Phoenix Ins. Co. of Hartford, 115 Fed. 653-656, said:

The court has decided what constitutes a cancellation where the insured is the actor as well as where the company takes the initiative. ( Buckley v. Citizens' Ins. Co., 188 N.Y. 399.) The contention here by the counsel representing the defendant companies that these expressions by the Court of Appeals are entirely obiter does not seem to be justified.

That decision was followed in Tisdell v. New Hampshire Fire Ins. Co. ( 155 N.Y. 163), and while determining the right of a company to terminate a policy has no application to the right of an assured to cancel the contract. The case of Buckley v. Citizens Insurance Co. of Mo. ( 188 N.Y. 399, 404), cited in the opinion at Special Term and statements contained in the opinions in the Crown Point and Boutwell cases it is said by counsel are decisive of the right of plaintiff to recover in this action. An examination of the opinions in the cases cited when interpreted with regard to the subject-matter under consideration by the court demonstrates the fallacy of that argument.