Traynor v. John Hancock Mutual Life Insurance

241 A.D. 845

Opinion

Order dismissing the complaint, and judgment entered thereon, reversed on the law, with ten dollars costs and disbursements, and motion denied, with leave to defendant to answer within ten days from the entry of the 'order herein. We are of opinion that if plaintiff can establish upon a trial such a continuous acquiescence by the defendant in accepting past due premiums as would amount to a course of conduct, it may be found by a jury to constitute a waiver of payment on the due date. Mere isolated instances of acceptance of past due premiums would not permit the plaintiff to convert an accommodation or courtesy to the insured into a triable issue on the question of a course of conduct. Lazansky, P. J., Young and Kapper, JJ., concur; Davis, J., dissents and votes to affirm; Hagarty, J., not voting.