CRANE, J.
The insured, Samuel Douglass, died June 24, 1910. The first action brought by the plaintiff to recover on the two pol[250]*250icies of insurance issued on his life was commenced April 13, 1911— almost 10 months thereafter. Clause 9 of the policy provides that no action shall be maintainable on the contract of insurance unless it shall be commenced within 6 months next after the death of the person insured. This has been held to be a legal limitation. Sullivan, v. Prudential Insurance Co., 172 N. Y. 482, 65 N. E. 268.
[ 1 ] The only way in which the plaintiff can avoid the bar of this ninth clause, pleaded as a defense, is by claiming a waiver. She says that Cuff, the Newburg agent, told her to do nothing, and the company would pay her. She most certainly must have misunderstood him; for, commencing with July 11, 1910, down to December 14, 1910, she received numerous letters from the company, all in evidence, informing her that one Leicht claimed the fund, and she could not have it without his consent. On July 11th a letter informed her that Leicht was 'a claimant, and that she must arrange with him; one, dated July 18th, stated that Leicht claimed the money; another, dated September 16th, refused to do anything until she had come to an agreement with Leicht; the October 27th letter stated that the company could not do anything without his consent; while the one dated November 25th notified her that the company would pay Leicht in full, and on December 14th she was informed that Leicht had been paid.' All of these letters were received by the plaintiff before the expiration of the six-months limitation. How they constitute a waiver of that limitation I am unable to comprehend. On the contrary, the plaintiff was informed very early that she could not have the money, as Leicht claimed it as assignee. In fact, she wrote the company, November 23d, that she had waited long enough and would fight. There was no waiver, and the defense was complete, requiring a dismissal of the complaint.
. [2] Another ground would also justify the same result. The plaintiff introduced sufficient evidence to warrant the conclusion that Leicht, the assignee, had been paid. He had an equitable interest, justifying payment under the second -clause of the policy, and the court should have so held.
[3] As to the claim of election of remedies, I believe that the first action constituted the election, and that the plaintiff, if she knew all the facts, could not sue Leicht. As to this defense, I believe it untenable; but the defenses above stated were good, and should have beén a bar to any recovery.
Judgment reversed, and new trial granted; costs to abide the event. All concur.
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