JOHNSON
v.
NEW YORK LIFE INSURANCE COMPANY.
No. 87.
Supreme Court of United States.
Argued November 12, 1902. Decided January 5, 1903. ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.*494 Mr. Constantine J. Smyth for plaintiff in error.
Mr. James H. McIntosh for defendant in error. Mr. George W. Hubbell and Mr. Frederic D. McKenney were with him on the brief.
MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.
This case must be dismissed for two reasons.
1. Plaintiff relies for a reversal upon the fact that full faith and credit were not given to the law of the State of New York requiring a notice of thirty days before the forfeiture of any insurance policy, which was pleaded in the case. This however is a title, right, privilege or immunity claimed under the Constitution of the United States, within the third clause of Rev. Stat. sec. 709, which must be "specially set up and claimed" by the party seeking to take advantage of it. Conceding that it was unnecessary to set it up in any pleading anterior to the trial, since it could not be claimed that the right had been denied to her until the trial took place, it was clearly her duty to make the claim either on the motion for a new trial, or in the assignments of error filed in the Supreme Court of the State. In neither does it appear, nor is there any allusion to it in the opinion of the Supreme Court. It first appears in the petition for a writ of error from this court. This is clearly insufficient.
2. The Supreme Court of Iowa did not fail to give due faith and credit to the notice law of New York, since it was fully *496 considered, and the decision of the state courts of New York were called to its attention and cited in its opinion. The court held that notice is required by that statute only as a basis for declaring a forfeiture or lapse of a policy for non-payment of premium or interest, and that the law had no application, because it was a non-forfeitable policy of term insurance, which had expired by limitation before the insured died. Whether the Supreme Court of Iowa was correct in its construction of the applicability of the New York notice statute to this policy was immaterial, since it did not deny the full faith and credit due to the New York law, but construed it as not applying to the policy in this case. The case is covered by that of Banholzer v. New York Life Insurance Co., 178 U.S. 402, and in principle by Glenn v. Garth, 147 U.S. 360; Lloyd v. Matthews, 155 U.S. 222. To hold otherwise would render it possible to bring to this court every case wherein the defeated party claimed that the statute of another State had been construed to his detriment.
The validity of the New York statute was not called in question. The case turned upon its construction. This was not a Federal question. Commercial Bank v. Buckingham, 5 How. 317; Baltimore &c. R.R. Co. v. Hopkins, 130 U.S. 210.
The writ of error is
Dismissed.
MR. JUSTICE WHITE and MR. JUSTICE McKENNA dissented.