(dissenting):
The only question presented on this appeal is as to the admissibility of the affidavit of one O. J. Goulden, under section 92 of chap*585ter 690 of the Laws of 1892. The action is brought to recover on a policy of life insurance, whereby the defendant insured the life of one Wilhelm Fischer. The complaint alleges that the said Wilhelm Fischer, mentioned in said policy of insurance, duly performed all the terms and conditions of said contract of insurance on his part to be done and performed. The answer admits the issuance of the policy, but denies the allegation just referred to, and alleges as a separate defense that the said policy was issued and accepted upon the express condition in writing set forth in the agreement between the parties, that if any premium, or installment of premium, upon said policy should not be paid on or before the date it became due, the policy should thereupon be and become void, and all premiums paid thereon should be forfeited to the company; that on the 22d day of April, 1896, there became due and payable to the defendant ■company, as a quarter-annual premium on said policy, the sum of six and seventy-one hundredths dollars; that the said premium has not been paid, nor any part thereof; that no premiums on said policy ■of insurance were paid subsequent to the 22d day of January, 1896, whereby, under the terms and conditions of said policy, the same became, on the said 22d day of April, 1896, null and void and of no effect, and all premiums previously paid on said policy became forfeited to the company.
The plaintiff put the policy and the written application therefor, ■signed by the insured, in evidence. By the conditions upon which the policy was issued, and to which, by its terms, it was subject, it was provided that “ if any premium, or installment of premium, ■upon this policy shall not be paid on or before the date it becomes ■due; this policy shall thereupon be and become void, and all premiums paid thereon shall be forfeited to the company.” The defendant introduced evidence from which it appeared that the last premium paid on the policy was paid January 22, 1896; that in July, 1896, the policy was declared forfeited by the defendant, and that the insured died in the city of Brooklyn on the 7th day of February, 1897. The defendant then offered in evidence the affidavit ■of one G-oulden, who deposed that he was an employee of the Metropolitan Life Insurance Company (the defendant); that it was his duty to mail to policyholders notices calling their attention to *586til e fact that premiums were due upon their policies, and naming the places where these premiums should be paid ; that on the 26th day of March, 1896, he prepared a written notice stating that the amount of the premium which would be due on the 22d day of,, April, 1896, upon the policy described in the complaint on the life of the said William Fischer, was six dollars and seventy-one cents; that said notice was inclosed in an envelope addressed to said Fischer at his residence in the city of Brooklyn; that deponent prepaid the; postage on said letter and mailed the same at the New York post, office on the 26th day of March, 1896. This affidavit was objected to by the plaintiff upon the ground that there was no defense set. up in the answer as to sending any notice such as was required by law; that the affidavit was incompetent, irrelevant and immaterial and did not comply with the statute as to an affidavit that is permissible in such a case. This objection was overruled and the plaintiff excepted; and this exception presents the only question upon this appeal.
There is no question presented as to whether the evidence established the defense or justified a verdict for the defendant. If this affidavit was competent evidence for any purpose, then the objection was properly overruled.
As to the first objection taken by the plaintiff to the affidavit, we think it was "properly overruled. The policy upon its face required the payment of the premiums upon the days named, and was issued in consideration of the payment thereof; and the condition upon which the j3olicy was issued, and which was made a part of the policy, was -that the failure to pay any premium on or before the day it became due should render the policy void. . It was seen that to entitle the plaintiff to recover it was necessary to allege and prove that the insured had complied with the conditions of the policy on his part. Assuming this obligation, the plaintiff alleged in her complaint that the assured duly performed all the terms and conditions of said contract of insurance on his part to be done and performed-This was an express allegation of performance. This allegation the defendant denied and set up the provisions of the policy by which it became void upon the failure of the insured to pay any premium required to be paid, and alleged that by reason of the failure of the assured to pay such premium the policy did become void. The *587issue presented, therefore, was whether the assured had performed all the terms and conditions of the policy, and whether by his failure to pay the premiums which became due subsequent to January 22,. 1896, the policy by its terms had become void. Under the policy no action of the company was required to avoid it upon the failure of the assured to pay the premiums required to be paid. By force of the provisions of the policy itself, upon a failure to pay a premium when due, the obligation of the defendant ceased, and there-was no liability under the policy. It was this contract that the parties had made, and it is this contract that we are to enforce.
By the terms of the policy the performance of this condition, viz.,, the payment of the premiums was a condition precedent to any liability of the defendant upon the death of the assured ; and the plaintiff having alleged the performance, and such allegations having been denied by the answer, the plaintiff on the trial must establish performance. (Code Civ. Proc. § 533; La Chicotte v. Richmond R. & El. Co., 15 App. Div. 384.)
In the case of Bogardus v. New York Life Ins. Co. (101 N. Y. 334) it was held that in that action upon a life insurance policy, where it was provided that “ ‘ if the premiums as above stipulated ’ shall not be paid, ‘ then and in every such case this company shall not be liable for the payment of the sum aforesaid, or any part-thereof, and this policy shall cease and determine,’ ” the plaintiff was bound to allege and prove the payment of the premium to sustain a cause of action. Ruger, Ch. J., in delivering the opinion of the court, says“ The contract, as pleaded, provides for the regular' payment by the assured of the annual premiums, and such payments are made the condition of any claim thereunder, and the nonpayment of such premiums causes the policy to become null and void and forfeits to the company all payments made thereon. These conditions were lawful; the parties were competent to enter into them, and unless performance or its equivalent is alleged, the plaintiff has failed to state a good cause of action, and must abide by the case as shown by her complaint.” (See, also, Mathews v. The Howard Insurance Co., 11 N. Y. 11.) It does not appeal'' from the record what evidence the plaintiff submitted to prove this-allegation of the complaint, but the plaintiff, being bound to allege- and prove the performance of the conditions upon which any obli*588gation of the defendant could be predicated, the defendant was entitled to prove that such allegation was not true, and that the assured had failed to perform the conditions provided for in the policy and to pay the premiums thereby required to be paid and thus avoid the policy.
By section 92 of the Insurance Law (Chap. 690, Laws of 1892) the Legislature has provided that “No life insurance corporation doing business in this State shall declare forfeited, or lapsed, any policy hereafter issued or renewed, and not issued upon the payment of monthly or weekly premiums, or unless the same is a term insurance contract for one year or less, nor shall any such policy be forfeited or lapsed by reason of non-payment when due of any premium, interest or installment or any portion thereof required by the terms of the policy to be paid, unless a written or printed notice stating the amount of such premium, interest, installment or portion thereof due on such policy, the place where it should be paid, and the person to whom the same is payable, shall be duly addressed .and mailed to the person whose life is insured, or the assignee of the policy, if notice of the assignment has been given to the corporation, at his or her last-known post-office address, postage paid by the ■corporation, or by an officer thereof, or person appointed by it to ■collect such premium, at least fifteen and not more than forty-five days prior to the day when the same is payable.” The effect of this provision was to postpone the forfeiture of a policy by reason of the non-payment of a premium therein provided to be paid until the notice required by the statute shall have been mailed to the assured, ■or the assignee of a policy, if notice of the assignment has been given to the corporation. The statute itself does not forfeit the policy, nor does the sending of the notice create the forfeiture. It .simply prohibits the corporation from declaring the policy forfeited until such notice shall have been sent. It was a fact to be proved which would be essential to the establishment by the insurance company of the fact that the premium required to be paid upon a day ■fixed in the policy had become payable so as to effect a forfeiture of the policy, and thus to answer the proof furnished by the plaintiff •to establish her allegation in the complaint that she has complied with the terms and conditions of the policy. The sending of the notice of itself was not a defense to an action upon the policy. It *589was simply an evidential fact to disprove the allegation of the complaint that the assured had complied with all the terms and conditions to be performed by him, and to prove the allegation in the answer that prior to the death of the assured the policy had lapsed because of a failure on the part of the defendant to pay the premiums thereon when the same became due and payable under the policy as controlled by this section of the statute before referred to, Suppose the plaintiff, in proving the allegations of her complaint, had shown a tender to this insurance company of the amount of the premium after the day named in the policy as the day upon which the same became payable, and relied upon such tender to prove a compliance with the terms and conditions of the policy, it clearly would have been competent for the defendant to disprove the allegation of the complaint as to performance, and to prove that it had sent the notice required by the statute, so that by the terms of the policy and the statute the premium had become due upon the day named in the policy, and thereupon the defendant had declared the policy canceled and forfeited.
The other objection to this affidavit seems to me to be equally untenable. The evidence is not a part of the record, the plaintiff presenting upon this appeal a bill of exceptions to present the exception to the admission of this affidavit. It does not appear but that there was evidence that the person making this affidavit was an employee, officer, clerk or agent of the defendant, authorized to mail such notice. As there is no case presenting the evidence, we cannot assume, for the purpose of reversing this judgment, that this fact was not proved by competent evidence; and this is emphasized by the objection to the affidavit, as it did not call the attention of the court to this specific point, the objection that the affidavit is not admissible because it is not proved that the affiant was an officer or employee of the company not having been taken. And as it does not appear from the record that there was no evidence of the fact necessary to make such an objection, if taken, of force, we certainly would not be justified in reversing the judgment because this bill of exceptions does not show that there was no evidence of such fact.
The notice complied with the section of the statute before referred to. It stated the amount of the premium due on the policy, the day when due, the person to whom and the place where the premium *590was to be paid. This notice was addressed to the assured at his place of residence, postage prepaid on the letter, and was mailed by -the affiant at the post office in the city of New York on the 26th day of March, 1896, twenty-seven days before the premium became due. The notice also stated that unless said premium should be paid to the defendant, or to the duly appointed agent or person authorized to collect such premium, by or before the 22d day of April, 1896, the policy and all payments thereon would become forfeited and void, except as to the right to a surrender value or paid-up policy, as provided for by law. Thus the notice was such as the statute required. By the section referred to such affidavit was made presumptive evidence that such notice had been duly given. I think, therefore, that the affidavit was competent evidence of the mailing of the notice, and that the objection was properly overruled.
As this is the only question presented by the record, it follows that the judgment should be affirmed, with costs.
Judgment and order reversed, new trial granted, costs to appellant to abide event.