(dissenting). I vote for affirmance. With the rules of law stated in the majority opinion I have no quarrel. However, the undisputed, unambiguous documentary proof requires, as matter of law, a holding that, when the insured here signed and returned the request form dated March 4, 1946, the minds of the parties had met, and there then existed a complete agreement as to the terms of a cancellation and surrender, effective March 5, 1946 (Pequot Mfg. Corp. v. Equitable Life Assur. Soc., 253 N. Y. 116, 121). That very March 4, 1946, document signed by the insured, starts out with the statement that the policies “ are surrendered as of March 5, 1946 ”. Defendant had by letter notified the insured that the request form “ should be forwarded to the Company , not later than March 5, 1946 if the surrender is to be effective as of that date.” The insured did so forward it, and the surrender did become effective.
The parties had agreed, by the same exchange of documents, that the contemplated formal supplementary contract was to be no more than a memorial, or evidence, of the existing pact (see 1130 President St. Corp. v. Bolton Realty Corp., 300 N. Y. *39163), and the insured could not reject that memorial so long as it conformed to the arrangement already in effect. No claim has ever been made that the supplementary contract, when tendered by defendant to the insured in due course, was in any way inconsistent with the agreement already concluded. Nevertheless, the insured, at just about the time when, according to the complaint here, he became totally disabled, attempted to revoke the cancellation. He had no right to do so.
The failure of the insured physically to return the policies is of no particular significance and added nothing to his rights (Gately-Haire Co. v. Niagara Fire Ins. Co., 221 N. Y. 162; Lofaro v. John Hancock Mut. Life Ins. Co., 272 N. Y. 627; Foley v. Equitable Life Assur. Soc., 290 N. Y. 424; Degnan v. Metropolitan Life Ins. Co., 178 Misc. 312).
Lohghran, Oh. J., Lewis, Dye and Froessel, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Fuld, J., concurs.
Judgments reversed, etc.