App. Div.]

Second Department, November, 1913.

payments could be made at any time during the month, two letters, received by the general agent and signed by the defendant by its general manager, were admitted in evidence. The first letter, dated December 5, 1906, read: "Contrary to our advertising matter and premium booklet, we give the entire month in which to make payment of premiums, and the agent reports to us on or before the 5th of the following month. That is to say for December premiums which are due on the 1st of the month, the agent has the entire month in which to collect, and until the 5th of the following month to remit to us. The method and time of payment is a matter of education." The second letter, dated February 15, 1908, read: "In accordance with the practice of other companies and the terms of our policies, we allow thirty days in which to make payment before lapsing the policies. Unless premiums are paid when due, questions are raised which cause annoyance and correspondence, and sometimes results in considerable trouble and disappointment for the insured or their beneficiaries. We have prepared reinstatement blanks and enclose a few herewith. Acting under the instructions of the company, we shall hereafter be obliged to refuse reports and remittances for past due premiums unless accompanied in every case by these reinstatement blanks properly executed."

Prior to the accident to the plaintiff, it was the custom of the defendant to pay claims where payments had not been made on the first of the month and the claims had arisen during the time intervening between the first and the date of payment. Upon the foregoing facts the trial justice was justified in finding that on September 3, 1912, "at the time of the accident to plaintiff, and the loss of his left leg, as aforesaid, the said policy of insurance so issued to plaintiff by defendant was a valid and existing instrument in full force and effect, and plaintiff was entitled to recover the benefit therein named."

The appellant contends that (1) the five-year period having expired at the time of the plaintiff's injuries, his policy had terminated and defendant had ceased to be liable thereunder; and (2) that to sustain the judgment is to determine that the defendant insured against the past instead of the future. Both contentions are without merit. (De Frece v. Nat. Life

Third Department, November, 1913.

[Vol. 158.

Ins. Co., 136 N. Y. 144, and cases cited; Insurance Co. v. Eggleston, 96 U. S. 577.) The by-laws of the company, the company's general custom with regard to payments, its letters to its general agent and its circular letter to the plaintiff, and its receipt without objection of the premiums during the months of September, October, November and December, 1912, all lead to the conclusion that the policy was, as the circular letter stated, "a continuous policy," and subject to lapse upon but one contingency, namely, the failure of the plaintiff to pay each premium within the month on the first of which it became due, whether the month was before or after the expiration of five years from the date of issue. The policy being a continuing one, the clause providing against the payment of benefits "for illness or death occurring before the policy has been in force two months" applies to the first two months following the issuance of the policy, and to that period only.

The judgment should be affirmed, with costs.

Present- JENKS, P. J., BURR, CARR, STAPLETON and PUTNAM, JJ.

Judgment unanimously affirmed, with costs.

In the Matter of the Application of MICHAEL J. FARLEY and Others, for a Special Town Meeting to Be Called in and for the Town of Sherburne, N. Y., Pursuant to Section 13 of the Liquor Tax Law.

MICHAEL J. FARLEY and Others, Appellants; WILLIAM LITTLE and Others, Intervenors, Respondents.

Third Department, November 12, 1913.

Intoxicating liquors - resubmission of local

option propositions under section 13 of the Liquor Tax Law-second resubmission unauthorizd.

Section 13 of the Liquor Tax Law, providing that if the four local option propositions "shall not have been properly submitted at such biennial town meeting, such propositions shall be submitted at a special town meeting duly called," does not authorize a second resubmission in case

App. Div.]

Third Department, November, 1913.

the proposition, shall not have been properly submitted at the biennial town meeting, nor a resubmission in case they shall not have been properly submitted at the special town meeting.

Hence, where a resubmission at a special town meeting results in a tie vote on one of the propositions, a justice of the Supreme Court has no authority, under section 13 of the Liquor Tax Law, to grant an order directing that the propositions be again submitted at a special town. meeting to be called for that purpose.

HOWARD, J., dissented.

APPEAL by the petitioners, Michael J. Farley and others, from an order of a justice of the Supreme Court, entered in the office of the clerk of the county of Chenango on the 30th day of August, 1913, denying the application herein.

Edward H. O'Connor [Henry R. Follett of counsel], for the appellants.

Ward N. Truesdell, for the respondents.

LYON, J.:

The four propositions specified in the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 13, as amd. by Laws of 1910, chap. 485) were submitted to the electors of the town of Sherburne, Chenango county, at the biennial town meeting held in February, 1913. The result was in the affirmative as to the fourth proposition relating to sales by hotelkeepers only. Upon an application to the county judge, alleging improper submission, an order was granted by him directing a resubmission, which was had May 10, 1913, and resulted in a tie vote, and hence a negative decision upon the fourth proposition. Application was then made to a justice of this court by petition and affidavits, alleging certain irregularities in the resubmission at the special town meeting, and so alleging that by reason thereof the four propositions had not been legally resubmitted and asking that it be so determined by the court and that an order be granted directing that the propositions be again submitted at a special town meeting to be called for that purpose. This application was opposed by certain taxpayers of the town in the capacity of intervenors, who filed opposing affidavits. The justice denied the application solely upon the ground that the Liquor Tax Law did not authorize the granting of the relief asked, and stating that the

Third Department, November, 1913.

[Vol. 158.

decision was not made upon the merits. It is from the order entered upon such denial that this appeal has been taken. We think the decision of the learned justice was correct. The Liquor Tax Law as originally passed (Gen. Laws, chap. 29 [Laws of 1896, chap. 112], § 16) contained no provision for a resubmission of the propositions, and no matter what irregularities might have existed in the election, the result of the submission at the regular town meeting was final. The following year the Legislature saw fit by enacting chapter 312 of the Laws of 1897 to provide in said section 16 as amended for a resubmission of the propositions at a special town meeting in case the propositions had not been properly submitted at the regular town meeting.

This provision has been the subject of amendment until the statute now provides: "If for any reason * * * the four propositions * shall not have been properly submitted

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at such biennial town meeting, such propositions shall be submitted at a special town meeting duly called. But a special town meeting shall only be called upon filing with the town clerk * * * an order of the court or a justice or judge thereof sufficient reason being shown therefor."

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*

The statute does not authorize a second resubmission in case the propositions shall not have been properly submitted at the biennial town meeting, nor authorize a resubmission in case they shall not have been properly submitted at the special town meeting, but authorizes only the single resubmission in case the propositions shall not have been properly submitted "at such biennial town meeting." A court or a justice thereof cannot exercise any power in the premises not expressly conferred upon him by the statute. In the absence of a provision granting to the court or judge authority to order a second special election in case, in his judgment, the propositions were not properly submitted at the special election, it must be presumed to have been the intention of the Legislature that but a single resubmission should be had, and that the result at the special election should be final until the next biennial election. As was said in the case of People ex rel. Brink v. Way (179 N. Y. 174): "The rules of construction of statutes require this court

App. Div.]

Third Department, November, 1913.

to hold that when the Legislature attempts to confer upon the court power to order examination of the ballots, the grant of power does not extend one iota beyond its terms." As was also said in Matter of Tamney v. Atkins (209 N. Y. 202), the opinion referring to the exercise by the court of power not expressly given it by statute: "It is well settled that this proceeding may not be entertained by virtue of any inherent powers of the court, but must find authorization and support in the express provisions of the statute. In such a case as this the right to the writ depends on legislative enactment, and if the Legislature as a result of fixed policy or inadvertent omission fails to give such privilege, we have no power to supply the omission."

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The order appealed from must be affirmed, with costs.

All concurred, except HOWARD, J., dissenting.

Order affirmed, with ten dollars costs and disbursements.

In the Matter of the Application of ALBERT SMITH SHELDON for the Proof and Probate of an Alleged Last Will and Testament of GILLAIS A. HUDSON, Deceased.

ALBERT SMITH SHELDON and FIDELIA B. RUTHERFORD, Appellants; WILLIEAN S. HUDSON, Respondent.

One offering a will for probate is under the burden of proving its existence at the time of a testator's death, or that it was fraudulently destroyed in his lifetime.

Evidence in a proceeding to probate a will examined, and held, to sustain the decree of the surrogate that the will, though duly executed, was not in existence at the time of the death of the testator, nor fraudulently destroyed in his lifetime, but had been destroyed by him with intent to revoke it and hence was not entitled to probate.

Pleadings in Surrogate's Court may be oral except when required to be in writing by the surrogate.