(dissenting). I dissent. It seems to me that the statement of the agent to the insured that he was insured and the delivery of the policy coincident therewith constituted a waiver by the company of the condition that the first premium must be paid in full. The principle that such circumstance at the inception of the policy constitutes a waiver is too firmly fixed in the jurisprudence of this state (Wood v. Am. Fire Ins. Co., 149 N. Y. 382, 385; Skinner v. Norman, 165 id. 565; Stewart v. Union Mutual L. I. Co., 155 id. 257) to be shaken by a single decision like Russell v. Prudential Ins. Co., 176 N. Y. 178. This consideration is pointed out in the recent case of McClelland v. Mutual L. I. Co., 151 App. Div. 264, 269.
The statement of thé agent that he had the policy but had forgotten to bring it with him and would send it by mail upon receipt of the dollar paid by the plaintiff was a sufficient actual delivery within the meaning of the cases cited.
Judgment reversed with costs.