The plaintiff is the beneficiary named in a, twenty-payment life insurance policy of $3,000 issued by the defendant, a Massachusetts life insurance corporation, November 29,1901, upon the application of her husband, Charles F. Howell, who died December 31, 1902.
The semi-annual premium fell due November 29, 1902, and was never paid. The thirty days of grace expired December twenty-ninth. The plaintiff claims that the local agent of the defendant extended the time of payment until after January first. The proof does not sustain this contention, for even if the agent possessed the power to extend the due date of the premium, which we doubt, the proof shows unmistakably the privilege granted was on the understanding that the insured took the chances of living until the extended time was passed and if he died in the meantime the policy was not enforcible. The trial court, therefore, erred in submitting this proposition to the jury. If this error were material, we would coincide with the minority of the court in granting a new trial. In our view of the case, however, the error was inconsequential for reasons which we will proceed to state.
Section 92 of the Insurance Law (Laws of 1892, chap. 690, as amd. by Laws of 1897, chap. 218), which is entitled “No forfeiture of policy without notice,” provides that no life insurance policy thereafter issued or renewed by any life insurance corporation doing business in this State 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, shall, for non-payment when due of any premium or any portion thereof, required by the terms' of *202the policy to be paid, “ be forfeited or lapsed ” within one year from the date when any such premium is due unless a written or printed notice in the form and manner prescribed in .the statute shall have been mailed to the insured or to the assignee of the policy, if notice of the assignment has been given to the corporation, at his “ last known post-office address in this State * * * at least fifteen and not more than forty-five days prior to the day when the same is payable.” The section further enacts: “ And no such policy shall in any case be forfeited or declared forfeited, or lapsed, until^the expiration of thirty days after the mailing of such notice.” Accordingly, it is an essential prerequisite for a life insurance company, which seeks to declare forfeited a policy issued by it, .to establish that the notice required by this statute has been mailed to the insured. (Baxter v. Brooklyn Life Ins. Co., 119 N. Y. 450; Strauss v. Union Central Life Ins. Co., 170 id. 349.)
The plaintiff claims that the defendant has omitted to meet this requirement, and we will briefly state the facts bearing upon this issue. Up to October 4, 1902, the insured resided at No. 8 Girton place, Rochester, N. Y., and on that day he moved to No. 64 Barrington street, in the same city, and by his direction all mail addressed to him at Girton place was delivered at his Barrington street address. George N. Smith was the general agent in charge of the business of the defendant at its Buffalo office and had in his employ a Miss Hydorn who attended to the preparing, and mailing of the premium notices on behalf of the defendant. She testified that along from the seventeenth to the twentieth of October she prepared and mailed the notice provided for by the statute addressed to the insured at No. 8 Girton place in the city of Rochester. She prepared this notice in conjunction with 400 or 500 others for premiums maturing in November. Her recollection depended upon ■ the examination of the due sheet and opposite each name was a check made by her. The red check opposite the name of Mr. Howell denoted two distinct facts, the mailing of the notice to him and also that the receipt was sent for collection to the agent at Eochestér. The envelope containing the notice to the.insured bore the return address of. Mr. Smith, the agent of the defendant, and there is no proof that the letter was not returned to him. While this proof was sufficient to meet the burden .primarily imposed upon *203the defendant it was not by any means conclusive and of itself tended to create some uncertainty.
Mrs. Howell testified that during all the time when this letter might be expected to have reached the Howell house that she received the mail and whatever came for her husband she laid aside for him and that she saw no letter bearing the return address of Mr. Smith upon a corner of the envelope. Mr. Briggs, her brother-in-law, attended the funeral of Mr. Howell and at the request of the widow took charge of his papers and examined them but found no notice such as the defendant claims to have mailed to Mr. Howell. In these circumstances, therefore, it was for the jury to say whether the statutory notice had been mailed to Mr. Howell. (Hastings v. Brooklyn Life Ins. Co., 138 N. Y. 473.) We must in our review of the case start, with the fact established, that the defendant failed to mail this notice which is essential to declare the policy forfeited for non-payment of premium.
It is of no importance whether Howell solicited an extension of the time of payment of the premium with his explicit statement that if the favor was accorded his policy should be inoperative in the meantime. If the court had held as matter of law that the local agent possessed no authority to postpone the date of payment or that no forbearance at all was granted by .him, still, with the fact found that no notice was mailed as required by the statute, the defendant is not in a position to claim a forfeiture of the policy. That failure is the insurmountable barrier to any claim that the policy has become forfeited or lapsed.'
It is to be noted that the trial judge merely charged the jury that, if they found that the'time of payment was extended, then that agreement would be binding upon the defendant. He did not instruct the jury that the determination of that issue favorably to the plaintiff entitled her to recover. On the contrary, he made the controlling fact in the case the one involving tire mailing of the notice, stating that if the notice was not mailed the plaintiff was entitled to recover. In fact it was obvious from the charge as a whole that the trial judge did not intend that the verdict of the jury should rest upon the proposition of the extension of the time of payment of the premium, but presented as the pivotal question for their determination the mailing of the notice.
*204The statutory provision (Ins. Law, § 92, as amd. supra), that an action on a forfeited policy must be instituted within one year from the date of the default has no application to this case. The policy is not forfeited, and it fixes the limitation of two years, which agreement of the parties supersedes the statutory limitation.
The judgment and order should be affirmed, with costs.
McLennan, P. J., and Williams, J., concurred; Hiscock, J., dissented in an opinion in which Stover, J., concurred.