equity and good conscience seek relief. Its own negligence and laxity standing alone estops it from any right to have the policy reformed.
It further appears that the second premium on the policy was paid by defendant on April 28, 1937, to the same agent, Gutwill, who had at an earlier date notified defendant of the error, and the premium was accepted by the plaintiff. Thereafter, several representatives of plaintiff visited Asofsky and endeavored to pick up the policy without success, and on June 23, 1937, the plaintiff wrote him a letter requesting a return of the policy in which they said: "Since the mistake was made by the company, it is no doubt fitting that we not ask you to make any adjustments on account of the premiums already paid." On August 3, 1937, and September 13, 1937, plaintiff wrote letters threatening suit unless the policy was returned, and after that, Asofsky went to the Passaic office on October 27, 1937, and paid a premium for which he received a receipt. As to this payment it is apparent that he avoided the Paterson office where they had knowledge of the error, in the hope that he might, as he did, deceive the Passaic office into an acceptance of the premium. His conduct in this regard, however, can not be held against him since his rights had matured at a prior date, and it appears that the plaintiff was in error in endeavoring to avoid the policy.
The law on the subject of reformation of contracts is now settled in this state. The latest case which has been brought to my attention is Lento v. Fidelity-Phenix Fire Ins. Co., November, 1939, 126 N.J.Eq. 331, 8 A.2d 822, 823, wherein Vice Chancellor Lewis held: "To secure reformation of a contract on the ground of mistake it is well settled that either the mistake must be mutual or that there is a mistake on the side of one party together with fraud or at least inequitable conduct on the side of the other party." Citing By-Fi Building & Loan Association v. New York Casualty Company, 116 N.J.Eq. 265, 173 A. 90, and cases therein cited; Sardo v. Fidelity & Deposit Co., 100 N.J.Eq. 332, 134 A. 774; Berkowitz v. West-chester Fire Insurance Company, 106 N.J.Eq. 238, 150 A. 404.
As has been shown the mistake here was unilateral and by the plaintiff and no fraud or inequitable conduct has been disclosed on the part of the defendant.
Plaintiff urges that reformation should be granted because of R.S. 17:34-45, N.J.S.A. 17:34-45, prohibits discrimination in insurance contracts, and as the policy now stands it grants a "special favor or advantage" in the "dividends or other benefits to accrue thereon," subjecting the plaintiff to the penalties of R.S. 17:34-46, N.J.S.A. 17:34-46, amounting to $100 for every $2,500 of insurance in contravention of the statute and imprisonment under certain conditions.
Counsel have cited no cases in this State bearing on the issue thus raised. Nor have I been able to discover any. Kaufman v. New York Life Ins. Co., 315 Pa. 34, 172 A. 306, is a case, however, directly in point, and the reasoning therein is to the effect that the violation of a non-discrimination statute of Pennsylvania, substantially in the same language as ours, does not afford a ground for reformation of a life insurance policy. That entire opinion should be read in connection with this case, not only because of its clear logic on the effect of the statute in question, but because the facts and the law bearing on other phases of this case are closely related.
An analogous situation is presented under R.S. 56:1-2, N.J.S.A. 56:1-2, which is an act making it a misdemeanor to transact business in this State under an assumed name without filing a certificate in the County Clerk's office and in the office of the Secretary of State. In construing that act, Mr. Justice Bergen ruled that the failure to file certificates as required did not prevent a plaintiff from recovering on an executed contract, and the violation of the act did not make the contract void, thereby placing the same interpretation on the act which had been given to a like statute by the courts of New York Prior to its enactment here. Rutkowsky v. Bozza, 77 N.J.L. 724, 73 A. 502.
The relief sought by the plaintiff herein is denied. A decree will be entered for the defendants and against the plaintiff.
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