Redfield v. Paterson Fire Ins. Co. in this State, the insured were not bound to seek the company, or to make any tender to it. The authorities relied upon to show that a debtor is not bound to seek his creditor out of the State, appear, upon examination, to be cases where the creditor was absent from home. They are cases of contracts, made with residents of the State, and it is held that if the payee absents himself from the State, it is not the duty of the payer to follow him outside of its limits; if he has no notice of a duly appointed agent to receive payment, a readiness to pay within the State, or, in case a tender is required, tender at the residence of the other party will suffice. This principle does not apply to the case before us. The contract was made with a foreign corporation, having no office in the State, and the contract was made out of the State, unless the broker is to be regarded as defendant's agent, and in that case, as his office was in the city of New York, the insured might have made the payment there. This is what they undertook to do on the day of the fire. Where the policy provided that the premium should be actually paid to them (the company), or to their duly commissioned agent "within thirty days," it certainly was not contemplated that the company should be under the necessity of coming into this State to hunt up the insured, taking the chances of finding him. It was his duty to go to the company or their duly commissioned agent, and make the payment. I think, however, the broker is clearly to be regarded as the agent of the insured. He was employed as broker by them. He was "in the insurance business in the city of New York," negotiating policies with this and other companies. Defendants kept no account with him, and gave him no credit. They had never conferred upon him any appointment. When he received premiums from policy-holders, he forwarded them, from time to VOL. VI.-30 Redfield v. Paterson Fire Ins. Co. time, to the company, they allowing him commissions on such premiums. We all know it is very common for insurance companies to allow commissions to any broker who brings them business. I see nothing in the case to show that Stearns had any real or apparent authority as agent, from the defendant. Besides, it is expressly stipulated in the policy, "that any person, other than the insured, or the company's duly commissioned agent, who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of this company under any circumstances whatever, or in any transaction relating to this insurance." I have referred to this matter thus fully, as bearing upon the only remaining question to be discussed, namely, whether there was any waiver or extension of the time of credit. It must be admitted that the defendant took extraordinary precaution in the policy to guard against the possibility of any such inference. In addition to the clause already referred to, disclaiming any agency for them on the part of any person procuring the insurance to be taken, other than a duly commissioned agent, it is provided as part of the contract (see § 6 of the policy), "that the agent of this company has no authority to waive, modify, or strike from this policy any of its printed conditions nor in case this policy shall become void by reason of the violation of any of the conditions thereof, has the agent power to revive the same any contract by parole or understanding with the agent, to the contrary, notwithstanding." Again (§ 7), "the use of general terms, or anything less than a distinct, specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or .written condition or restriction therein." Now the plaintiff seeks to escape the force of these Redfield v. Paterson Fire Ins. Co. provisions, and the terms of his contract, by showing a course of dealing between the defendant and other parties insuring with it, especially those who had procured insurance through the same broker. It was proved that Stearns had for a period of eight months previous to the issuing of the policy in suit, been procuring insurances with defendant for various parties (though never before for the insured in this policy), that he had forwarded the premiums to defendant in some cases after thirty days had elapsed from the issue of the policies to which they applied, and that no objection had ever been made prior to this case. It also appeared, that as a general thing, defendant did not make a point of canceling unpaid policies at the end of thirty days; it might be done, depending on whether they expected to receive the premium. After the loss in question, defendant sent notices to Stearns of intention to cancel certain policies that were unpaid, but had never done so before. With reference to this policy, nothing had taken place between the parties, after its delivery, and before the fire; the only act in regard to it was its cancellation on the books of defendant. It is sought, however, to make out a waiver from the course of the defendant in reference to policies previously issued to other parties. Even conceding that those contracts were the same as this, and that the knowledge of Stearns as to the extension of credit in other cases was the knowledge of his employers in this, on what principle can the defendant's waiver of the terms of its other contracts be construed into a waiver of the terms of the contract made with these parties? A party, by yielding his rights any number of times, does not put it out of his power to make a new contract, and stand upon it. It would not be contended that it was competent to contradict the terms of this contract, by showing that when it was executed it was verbally agreed that although the Redfield v. Paterson Fire Ins. Co. policy says the premium must be paid within thirty days, it might be paid with the same effect, any time within ninety days; and yet this express stipulation of the writing is just as effectually contradicted and set aside by a more loose and dangerous species of evidence, when the neglect of one of the parties to enforce forfeitures in other cases is invoked to show that there can be no forfeiture in this. It is equivalent to saying that because the defendant has not insisted upon all of its contracts it shall not insist upon any. Especially does it seem to me that no such effect can be given to a previous course of dealing with other parties, or even the same party, when it has been stipulated that "anything less than a distinct specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction herein." Nor do I think it would help the plaintiff to regard Stearns as the agent of the company. In that case, all the previous dealings of the company, with which he was concerned, would have no bearing on plaintiff's claim; and even if he had attempted directly to waive compliance with the requirements in question, in the face of sections 6 and 7 of the policy above quoted, he would have been powerless to do so (Van Allen . Farmers' Joint Stock Ins. Co., 64 N. Y. 469; reversing 4 Hun, 413; Merserau v. Phoenix Life Ins. Co., supra; Davis v. Massachusetts Mutual Life Ins. Co., 5 Ins. Law Journal, 736). The learned judge at the trial submitted the case upon views somewhat different from those we have taken, and if we are right, it will be unnecessary to notice the exceptions in detail. The result must be a new trial. NEILSON, Ch. J., concurred. Snelling v. McIntyre. SNELLING v. MCINTYRE. New York Supreme Court, First Department; Special Term, March, 1879. FORECLOSURE OF MORTGAGE.-INFANCY OF MORTGAGOR.-DOWER RIGHTS OF INFANT WIFE. SUBROGATION. Where a mortgage upon lands, executed by a husband and wife, was created to raise funds to pay off a prior mortgage upon the same premises, executed by the mortgagor before his marriage, and the funds were used for such purpose, it afterwards appearing that the wife, at the time she executed the last mortgage, was an infant, but the fact of such infancy was not disclosed, Held, in an action to foreclose the last mortgage, that the person taking the same was entitled to be subrogated to the rights of the mortgagor under the first mortgage, and that the same should be revived and enforced to the amount advanced to pay the same, to the exclusion of the dower rights of the wife, and that such dower rights would attach only to any surplus remaining after the mortgage debt was paid. Banta v. Garmo, 1 Sandf. Ch. 383, distinguished; Barnes v. Mott, 64 N. Y. 397; Green v. Milbank, 3 Abb. New Cas. 138, applied. This action was brought by Grace C. Snelling against Charles McIntyre and others, to foreclose a mortgage on real property. E. T. Snelling and John M. Bowers, for plaintiff. D. T. Walden, for defendant, Mrs. McIntyre. VAN VORST, J.-At the time the moneys were advanced by the mortgagees upon the mortgages now sought to be foreclosed, there were prior mortgages upon the premises, executed by the defendant, Charles McIntyre, before his marriage. The after-acquired dower rights of his wife, the defendant, Catharine McIntyre, were in subordination to the rights of the holders of these mortgages. The prior mortgages were in fact unsatisfied of record when the moneys were advanced on the mort |