I think that in no view of this case can the judgment appealed from be affirmed. If we assume that the plaintiffs could not recover the amount of the insurance upon the life of their testator either because the agreement to transfer the policy from the testator's deceased wife to himself was void for want of legal power or because the agent was without authority to make it, then the plaintiffs were entitled to recover the amount of premiums paid by their testator after the decease of his wife with the interest thereon. It was not necessary that they should bring their action for that purpose. The complaint alleges not only the policy, but the agreement or statement of the defendant made after the death of the wife that it had transferred the policy so as to make the insurance money payable to the testator's estate, and that relying on such statement he had paid various premiums. The defendant repudiated the agreement on one or both of the grounds mentioned. On a repudiation of the agreement it was bound to restore the premiums it had received. Strictly speaking, it should in its answer have tendered their return and paid the money into court. (Waddington v. UnitedIns. Co., 17 Johns. 23.) This remains the general rule throughout the country (1 Bigelow on Frauds, p. 80, and see cases there cited), but it has been modified in this state by the decision in Harris v. Equitable Life Ass. Socy. (64 N.Y. 196). That was an action on an insurance policy in which the defendant set up fraud and offered to allow judgment for the amount of the back premiums and interest. On the trial the court excluded proof of the offer and directed a verdict for the amount of the policy because the defendant had not returned or offered in *Page 474 its answer to return the premiums. The judgment was reversed at the General Term and on appeal the reversal was affirmed by this court. The court held that the offer to allow judgment was a sufficient offer to return because the judgment in the case could have awarded to the plaintiff the relief to which he was entitled in case the defendant succeeded in its repudiation of liability.Allerton v. Allerton (50 N.Y. 670) was cited as an authority sustaining the decision, but there is not a suggestion that because the plaintiff did not accept the defendant's offer the defendant was entitled to keep the money. When the court decided that restoration in advance was unnecessary because the judgment in the action could take care of the plaintiff's rights, it necessarily decided that no other action to recover the premiums was necessary and that they could be recovered in that action, for if another action was necessary for that purpose, then relief could not have been afforded in the action then before the court.
The plaintiffs waived nothing by the course of their counsel at the trial. He asked the court for nothing except to go to the jury on all the issues in the case. He frankly told the court that he should claim that he was entitled to the return of the premiums. It may be that if he had confined his claim to a verdict for that amount the court would have directed such a verdict, but he wanted more. He was not bound to accept the court's suggestion. "Where a party is nonsuited upon the motion of his adversary, over his objection and exception, he may insist, upon a review of the decision, not only that the judge at circuit erred in the application of the law to the facts as viewed by him but that he erred in his conclusions of fact or that there were disputed questions of fact which should have been submitted to the jury." (Clemence v. City of Auburn, 66 N.Y. 334,338; Baylies New Trials Appeals [1st ed.], p. 185.) Asking a trial court to direct a verdict, unless followed by a request to go *Page 475 to the jury in case the direction is refused, often leads counsel into fatal difficulties, and there are times when it is wiser to have the case passed upon by the jury even if the court intimates a willingness to comply with a request if made. But whatever may have been his reason, counsel could stand on his rights and his exception to the nonsuit or direction of the verdict was good if there was any matter of fact to be submitted to the jury, or if as matter of law he was entitled to recover any sum. In Paltey v. Egan (200 N.Y. 83, 89) Judge HISCOCK said: "The ordinary question is presented to us which arises on any nonsuit whether there was any view of the case on which the appellants should have been allowed to go to the jury, and this brings us to the merits of the appeal. The appellants were not required to make specific requests to go to the jury." In Pneumatic Signal Co. v. Texas Pacific Ry. Co. (200 N.Y. 125, 129) Judge WILLARD BARTLETT said: "A plaintiff in bringing his action thereby asks to go to the jury on any and every issue of fact which may arise upon the complaint and answer; and the specification by counsel of some issues which occur to him at the moment as especially proper to be submitted, when he perceives that the court is about to direct a verdict against him, does not constitute a waiver of his right to go to the jury upon every other issue of fact which is really in the case."
The question here discussed may be of vital importance to the plaintiffs. The action has been three times tried; three times on appeal to the Appellate Division and this is the second appeal to this court. The costs incurred in the action probably exceed the amount of the policy. The plaintiffs contend that the amount for which judgment was offered by the defendant was inadequate. If they are correct in this claim, they will not only be relieved from the judgment for such costs, but will be entitled to recover them from the defendant. This cannot be determined by us. It can be decided only when *Page 476 costs are taxed on the final determination of the action. The modification made by the majority of the court leaves the plaintiffs subject to the imposition of costs in the courts below, and at the same time amounts to a denial of their right to recover costs. It seems to me, therefore, that the plaintiffs have the unqualified right to have the question determined by this court whether or not they were entitled to a verdict for the amount of the premiums paid by their testator.
The judgment should be reversed and a new trial granted, with costs to abide the event.