The action was brought to revive or reinstate a policy of life insurance (claimed by the defendant to have lapsed), and to compel defendant to accept payment of premiums and to recover the amount of the policy, less certain premiums. The principal defense was that the insured, Frances A. Kenyon, failed to pay on its due day a premium of eleven dollars and seventy-six cents which fell due on her policy August 1, 1895. The defense insisted that the policy lapsed, and that the lapse was never waived.
Defendant is a foreign corporation, existing under the laws of the State of Connecticut, carrying on the business of life insurance at Hartford, Conn., its principal office, and elsewhere. On the 23d of January, 1894, it issued its policy to Frances A. Kenyon, of Medina, upon her life. In the policy was the following provision : “And in consideration * * *' of the further payment at the home office at Hartford, Connecticut, on or before twelve o’clock, noon, on the first week day of the months • of February, April, June, August, October and December of each year during the continuance of this contract, of a premium for such an amount as the association may deem requisite for the prompt payment of all losses. * *. * It is understood and agreed that a failure to make any payment specified in said policy on or before the day due (except as hereinafter specified) shall work a forfeiture of this policy and all moneys paid on the same shall be forfeited to the association for the benefit of the persisting members.” One of the conditions mentioned in the policy was as follows: “ Notices given to the member while any payment that has fallen due herein shall be unpaid, are to be understood only as notices to reinstate membership, and shall not be held to extend maturity of such unpaid payments, nor as waiving proof that the member is alive and in good health, proof of which, to the satisfaction of the association, shall be tendered with all payments for reinstatement, when the policy may be reinstated at the option of the association. Notice that a premium is payable to the association at Hartford, Conn., on or before twelve o’clock at noon on the first week day of each of said months of each and every year is given in the policy and accepted, and any further or other notice is expressly waived. And in the event that the holder of this policy does not receive a notice of the amount of premium which will *296be due on the days specified herein, an amount equal to the last premium shall be paid to the association on or before the day due,, as a condition precedent to the continuance of the policy in force.”
The trial judge found that on the 23d day of January, 1894, the contract of insurance “ had its inception by the delivery thereof to-the said Frances A. Kenyon in an envelope through the post office from the defendant of the said policy and receipts for the sum of eleven and 24/100 dollars, the amount of the first required premium, together with a notice of which the following is a copy of the material portions thereof : ‘ Mrs. Frances A. Kenyon, Box 601, Medina, N. Y.; O. EL Blanchard, Pres.; D. S. Fletcher, Gen’l Manager; E. E. Smith, Treasurer, National Life Association, flartford Fire Insurance Company Bldg., No. 53 Trumbill St., Hartford,. Conn., January 23, 1894, P. 0. Drawer 57. The first premium on your policy No. 30496, $9.24, is now due and payable at this office. * * * Make all checks and post office orders payable to the-National Life Association. Please enclose this notice with your remittance and it will be stamped paid and returned to you. H. T. Braman, Secretary.’ ”
The trial court also found, viz.: “ That under and by the terms of said policy a premium thereon was due and payable at the home office of the defendant in Hartford, Connecticut, on the first week day of August, 1895, said first week day being also the first day of said month of August, 1895. That on the 30th day of June, 1895,. the defendant, by its secretary, Frederic H. Calkins, served upon the said Frances A. Kenyon; by depositing the same in the general, post office in the city of Hartford, Connecticut, enclosed in a prepaid sealed envelope addressed to the said Frances A. Kenyon, at Box 601, Medina, N. Y., being the last address upon the books of the-said defendant given by the said Frances A. Kenyon as the place where notices relating to the said policy should be sent,” a notice, a copy of which is stated fully in the findings. The notice was to the effect that the bi-monthly premium of eleven dollars and seventy-six cents-would be due and payable on or before twelve o’clock noon on the 1st day of August, 1895. Written across the margin of the notice were the words “ Notice. This premium is payable at the office in Hartford, Conn., on or before 12 o’clock at noon of the 1st day of August, 1895.” Accompanying the notice signed by Braman, secre*297tary, was also a notice signed by Fletcher, president, in which was found the following words : “We enclose you an envelope directed to the company for your convenience in case you remit by mail. But it must be distinctly understood that the Association is not and cannot be responsible for a/ny loss or delays of the mails. Mailing of the amount of premium is not payment. It must reach the home office on or before the date due in order to prevent the policy from lapsing. Pay early. Don't wait until the last day. It will save both yourself amd the company trouble amd expense. * * * ”
The trial court also found, viz.: “ That the said notice was duly received by the said Frances A. Kenyon.”
At the time the policy was issued she resided in Medina, a distance of about 530 miles from Hartford, by way of New York. There is a communication between the two places by mail — by railway trains leaving several times each day from Medina. It usually takes from seventeen to eighteen hours for a letter to reach Hartford after leaving Medina. It is found as a fact that Mrs. Kenyon regularly paid her premiums of eleven dollars and seventy-six cents each two months to the defendant by sending the same by mail from Medina to the defendant at Hartford “ until the premium which became due August 1, 1895. The amount of that premium, eleven and 76/100 dollars, she caused to be sent to the defendant by mail by depositing the money in the post office at Medina, N. Y., on the 30th day of July, 1895, in a registered letter and directed National Life Association, Hartford, Conn., and paid the postage and registry fee thereon. That it arrived at the Hartford post office not later than the morning of August 1, 1895, and in time to have been received by defendant before noon of that day. That the defendant did not take or receive the same from the post office at Hartford, Conn., until August 2, 1895.”
The court also found: “ That the defendant received said registered letter from the post office at Hartford on the 2d day of August, 1895, with inclosure of eleven and 76/100 dollars, and at the same time a receipt was signed by the defendant for said letter, and that at the time of signing said receipt defendant well knew that said registered letter contained the money to pay said premium, *298and after signing and delivering said receipt to the postmaster at Hartford, the defendant took said registered letter and money away to its place of business and has all the time since retained and still retains said premium money of eleven and 76/100 dollars.”
The court also found : “ That soon after the receipt of said premium money as aforesaid, the defendant notified the said Frances A. Kenyon that because the premium had not been received by it until after August first her policy had lapsed and had been canceled upon its books and had become forfeited, and refused and neglected to. notify said Frances Kenyon of the falling due of any further premiums or assessments under said policy, and claimed and still claims that said policy is not now nor has been at any time since August 1, 1895, in force, but that it is' absolutely void; and said Frances A. Kenyon failed and omitted to pay any of the premiums that fell due upon said policy after the said 1st day of August, 1895.”
It is found as a fact that on the 19th day of January, 1897, Frances A. Kenyon died, leaving a last will which was admitted to probate in the Surrogate’s Court of Orleans county, and that the plaintiff at the time of the commencement of this action was, and now is, the owner of all interest which said Frances A. Kenyon, or any other ¡Derson had in said policy of insurance at the time of her death, or at any time afterwards. It was also found that no proof was offered or made upon the trial that proofs of the death of said Frances A. Kenyon had been given or furnished the defendant.
The trial court also found : “ That there is no evidence that the .said Frances A. Kenyon, after receiving notice from the' defendant that her policy was lapsed and forfeited, ever gave any notice to the defendant that she refused to recognize said lapse, or that she made any claim under said policy.”
And the court further found: “ There is no evidence that the said Frances A. Kenyon ever tendered or offered to pay any one of the premiums which (if said policy were not lapsed) would have fallen due thereon from August 1, 1895, to the day of her death, January 19, 1897. There is no evidence that Frances A. Kenyon ever demanded back the $11.76 which was mailed in her behalf to the defendant July 30, 1895, for the purpose of paying the premium which fell due August 1, 1895. There is no evidence that the defendant ever declined or refused to pay back said $11.76 (mailed *299to it in behalf of Frances A. Kenyon July 30, 1895, as before found) to Frances A. Kenyon.”
The trial court found that the deposit of the $11.76 in money in a registered letter at Medina and directed to the defendant “ and the receipt and retention of said money by it was a payment of the premium to the defendant due August 1, 1895.” Also, “ That the receipt of such money on August 2, 1895, and continued retention thereof by defendant to the present time, was a waiver by it of the forfeiture of the policy if any occurred by reason of its non-payment on August 1,1895.” Also, that by giving notice to said Frances A. Kenyon that the said policy was lapsed and had been canceled upon its books and become forfeited, and by its claim that said policy was void, “ it waived payment of future premiums, and service of proofs of death; ” and that the plaintiff was entitled to recover the $2,000, less the unpaid balance of deferred premiums and the amount of all unpaid premiums, to wit, a balance of $1,391 besides interest. Exceptions were filed to the conclusions of the trial court.
By the terms of the policy issued by the defendant the insured was bound to make the payments at Hartford on or before the due days; and by the terms of the policy the amount which was due on August 1,1895, for premium, the insured was required to p>ay to the home office. She had received a notice which warned her to the effect that if she remitted she must see to it that the remittance actually reached the home office on or before that day if she wished to avoid a lapse. The prior payments made by her had reached the home office in due time. On the 30th of June, 1895, the defendant’s secretary served upon Mrs. Kenyon a notice, addressed to her at Box 601, Medina, N. Y., “ being the last address upon the books of the National Life Association given by the said Frances A. Kenyon as the place where notices relating to policy No. 30,496 should be sent,” a notice that eleven dollars and seventy-six cents would be due on her policy at twelve o’clock, noon, on the 1st day of August, 1895. Across that notice -was pointed these words: “ Notice. This premium is piayable at the office in Hartford, Conn., on or before 12 o’clock noon of the 1st day of August, 1895.” Accompanying that notice were the words, “ We call spoecial attention to the conditions of your policy, which require that the payments shall be made at Hartford on or before the date due, in default of which your policy will lapse, *300according to its terms, and all payments heretofore made thereon will be forfeited; and that the member can only thereafter be reinstated at the option of the company, and then only by signing a health certificate, upon which a new policy may, at the option of the company, issue upon such terms and conditions as the Executive Committee may require. * * * But it must be distinctly understood that the Association is not and cannot be responsible for any loss or delays of the mails. Mailing of the amount of premium is not payment. It must reach the-home office on or before the date-due in order to prevent the policy from lapsing.” The trial court, in its 5th finding, states : “ That the said notice was duly received by the said Frances A. Kenyon.”
There is no evidence tending to show that she did not understand, the language used in the notice, or that she did not read the notice.
The notice given complied with the statute as to form and in every other respect. (Bopple v. Supreme Tent, 18 App. Div. 488; Laws of 1892, chap. 690, § 210 ; Greenwald v. United Life Ins. Assn., 18 Misc. Rep. 91; Primeau v. National Life Assn., 77 Hun, 418 ; McCluskey v. National Life Assn., Id. 556 ; affd., 149 N. Y. 616;. Bridge v. National Life Assn., 11 Misc. Rep. 658.)
The remittance of eleven dollars and seventy-six cents did not reach the hands of the defendant until on the second day of August,, at about four o’clock in the afternoon.
Upon the trial a concession was made in the following language : “ It is conceded by plaintiff’s counsel that the envelope containing-the $11.76 claimed by the plaintiff to have been mailed by the plaintiff at Medina, July 30,1895, was not actually received by the defendant until sometime on the second day of August following.” It was-shown that it was the custom of the defendant’s office in regard to obtaining letters that came by registered mail to go after them to the-office twice a day, “ and for other mail four times a day. The last hour they go for registered mail is 4:30 ; they go down to the post-office and get the registered mail at 4:30 in the afternoon.”
It is contended in behalf of the respondent that, because the* company retained the eleven dollars and seventy-six cents, a waiver . of the forfeiture caused by the failure to deliver to the defendant, the remittance of August 1, 1895, took place. It appears that the= defendant properly notified Mrs. Kenyon that its receipt did not con*301stitute a payment, and gave her notice that the policy had lapsed because of the non-payment of the premium of eleven dollars and seventy-six cents due August 1,1895. It is averred that the defendant “ refused to regard the receipt of the amount of said premium or assessment as a payment of said premium, upon the sole ground that it was not received by it until after August 1, 1895, and notified plaintiff that her policy had lapsed and had been canceled upon its books and had become forfeited.”
The trial court found in respect to the eleven dollars and seventy-six cents premium due on August 1, 1895, viz.: “ That soon after the receipt of said premium money as aforesaid, the defendant notified the said Frances A. Kenyon that because the premium had not been received by it until after August 1st her policy had lapsed and had been canceled upon its books and had become forfeited.”
There was no evidence given on the trial to the effect that Mrs. Kenyon ever demanded back the eleven dollars and seventy-six •cents, or that the defendant ever declined or refused to pay back that money. Nor is there any evidence that Mrs. Kenyon, after she had received the notice of the lapse of her policy during her life, which continued some seventeen months and nineteen days thereafter, made any effort to have her policy restored or reinstated. Under such circumstances, I am of the opinion that the policy was forfeited, and that sufficient circumstances have not been disclosed to warrant the court in finding that there was a waiver of the forfeiture by the defendant. The evidence did not warrant the finding that the defendant intended to accept or retain the eleven dollars and seventy-six cents as a payment of the premium. No subsequent notices were delivered to Mrs. Kenyon, and no subsequent efforts were made by her to pay the succeeding premiums. She having received notice that the company did not intend to accept the money as payment, was not, during the seventeen months and nineteen days of her life, in any situation to insist that the company had made a waiver of the forfeiture and had assumed to treat her policy as in life. Her omission to pay premiums thereon evidently was because she knew that the company had declared the policy lapsed and that they would not accept any such premiums if she tendered them, and she, therefore, herself acquiesced in the forfeiture of the policy. (Lantz v. Vermont Life Ins. Co., 139 *302Penn. St. 546 ; Wyman v. Phœnix Mutual Life Ins. Co., 45 Hun, 184; Shea v. Massachusetts Benefit Assn., 160 Mass. 289 ; Phœnix Life Ins. Co. v. Raddin, 120 U. S. 183; Matter of Attorney-General v. Continental Life Ins. Co., 93 N. Y. 70.)
In Primeau v. National Life Assn. (77 Hun, 418) there was prompt action to avoid a forfeiture.
The evidence indicates that the policy had lapsed and that Mrs. Kenyon, on the 19th of January, 1897, at the time of her death, and theretofore, had waived all right to have the same reinstated.
The foregoing views lead to the conclusion that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment affirmed, with costs.