Opinion
June 6, 1929.
Appeal from the Municipal Court, Borough of Manhattan, Sixth District.
Frederick C. Tanner, for the appellant.
Leo Kraus, for the respondent.
The beneficiary under the policy of insurance involved herein resided in New Jersey and the policy was delivered to her there by the defendant which was a Massachusetts corporation. The insured died in New Jersey and the beneficiary resided there at the time of the insured's death. Unquestionably under such circumstances, section 92 Ins. of the Insurance Law of this State does not apply to the contract involved herein. ( Mutual Life Insurance Company v. Cohen, 179 U.S. 262, 269.) Both the States of New Jersey and Massachusetts derive their common law from that of England and the presumption arises that their common law is the same as ours. ( Savage v. O'Neil, 44 N.Y. 298.) There being no proof of the statute law of the State where the contract was made no presumption arises as to such statute law. ( First Nat. Bank v. National Broadway Bank, 156 N.Y. 459, 472; Robb v. Washington Jefferson College, 185 id. 485, 496; International T.B. Co. v. Connelly, 206 id. 188, 200.)
In the case of Stewart v. Union Mutual Ins. Co. of Maine
( 155 N.Y. 257), upon which the trial court relied, it was quite evident that the Court of Appeals was referring to the common law when it said that in the absence of evidence we might assume that the laws of Maine where the contract of insurance was made were the same as the laws of this State. No statute of this State affected the question then before the court.
Under the common law of this State plaintiff was required to establish that at the time of the death of the insured the policy was in full force and effect and its requirements had been complied with, including the payment of premiums due.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, LYDON, CALLAHAN and FRANKENTHALER, JJ.