The facts are set forth in the opinion of Justice Guy. As the ten cent deposit was “ on account,” it must be deemed to have become an acceptance of the application, the premium for the first week, the policy being for $198 (half that amount in case of death within six months) with a weekly premium of ten cents. Upon acceptance, therefore, which was evidenced by the issuance of the policy on June 14, 1909, the first premium was *117already paid. It was thé agent’s duty forthwith to pay it to the company and deliver the policy, if the applicant was still in sound health. Delay on his part could not lawfully prejudice the insured. Fried v. Royal Insurance Co., 50 N. Y. 243; Chief Justice McClain in 25 Cyc. 718.
If the policy had been already issued and the requirement that at time of issuance the insured is in sound health had been one of its conditions, the burden of disputing the soundness of his health would have been upon the company. Kelly v. Metropolitan Life Ins. Co., 15 App. Div. 220, 223; Breese v. Metropolitan Life Ins. Co., 37 id. 152, 159. Assuming that the ease is otherwise here, yet I think that the company’s own medical certificate of his good health on June sixth establishes a presumption of fact that he was still in the same condition on June fourteenth, although for some unknown illness taken to the hospital two days later.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.