| N.Y. App. Div. | Jul 1, 1897
This action was begun May 9, 1894, to recover $1,000 alleged to be due on the following certificate, issued by the defendant, an assessment beneficialy society, organized under the statutes of the State of Michigan, and authorized to transact business in this State:
“ Supreme Tent K. O. T. M. of the World.
“ No. 19,758. $1,000.
“ This certifies that Sir Knight Philip Schaurer has been regularly admitted as a member of Bristol Springs Tent No. 197, located at Bristol Springs, State of New York, and that in accordance with, and under the provisions of, the laws of the Order he is entitled to all rights, benefits and privileges of membership therein, and that at his death one assessment on the membership, not exceeding in amount the sum of
One Thousand Dollars,
will be paid as a benefit to Peter Nicklous and Peter Schaurer and Mary Roos and Julia Bopple, bearing relationship to him of father,*490 brothers and sisters, upon satisfactory proof of his death, together with the surrender of this certificate,, provided he shall have in every particular - complied with the laws of the Order now in force, or that may hereafter be adopted,-and has not obtained his membership by fraud or misrepresentation as .to. his age, physical condition or occupation, when admitted to membership:
“ In testimony whereof the Supreme Tent has caused the Supreme Commander'and Record Keeper to attest and affix.'
■July, 1893.
“D. P. MARKET, Sup. Com.
“ N. S. BOYNTON, Sup. R. K.
“Countersigned, sealed and delivered by the Sir Knight Commander and Sir Knight Record Keeper of .Bristol
“ JOHN M. MILLER, Sir Kt. R. K.
“ELMER N. CO YE, Sir Kt. Com."
January 20, 1894, Philip Schaurer died, and subsequently the defendant waived the provision in the certificate that satisfactory proof of his death should be furnished.
It is' alleged in the. complaint that Philip Schaurer “ made application in the usual and required form to "join said Tent No. 197 of said defendant, and for insurance on his. life to the amount of $1,000-; ” that he paid the. sums required for admission, and “ the acceptance of which' (the. sums) and of his application constituted him a member, entitled to the insurance benefits -to said amount of $1,000,” and “ that by said application' and the acceptance thereof, and by the issuing of the said certificate marked ‘A,’ the life of the said Philip Schaurer became and was insured.”
Among other defenses alleged in the answer are the following: (1) That when the certificate was issued the insured was engaged in the manufacture of wine,, in violation of section 142 of the defendant’s-constitution, which fact was not stated in the-application on which the certificate was issued, but was fraudulently suppressed; and -that, after the certificate was issued, the insured- engaged in the
By section 172 of the constitution of the defendant, a definite sum is payable monthly by every member (forty-five cents in the case of Schaurer), in order to keep certificates in force, which sums by section 182 are due on the first day of every month and must be paid within thirty days thereafter. In addition to these stipulated monthly payments, the constitution provides that assessments may be made when necessary for the purpose of paying death claims, and that, in case monthly dues and assessments are not paid, the defaulting member shall stand suspended from all the rights and benefits of a member.
The defendant, to establish its defense of non-payment of the monthly dues by Schaurer, called the finance keeper of Tent 197, at Bristol Springs, and offered to prove by him that the insured failed to pay the monthly ]iayments due on the 1st days of September, October, November and December, 1893, and on the 1st day of January, 1894. It appeared that the witness was a member of the order, holding a certificate therein, and would be liable to be assessed to pay the plaintiffs’ claim. The plaintiffs objected to his testifying on the ground that he was disqualified by section 829 of the Code of Civil Procedure, and that evidence of non-payment of assessments was incompetent until it was first shown that notices of the assessments had been given, as required by chapter 341 of the Laws of 1876, as amended by chapter 321 of the Laws of 1877. The objections were sustained and the defendant excepted.
The witness was not a party, plaintiff or defendant, to the action, nor did. either party to the action derive his interest in the subject-matter thereof. from or through him, but it is argued that the witness was “ interested in the event ” within the section. The term last quoted means having a direct legal interest in .the event of- an action as distinguished from an interest in consequences which may. or may not flow from the event of the action. For whichever litigant the final judgment in this action may be given, it will' not charge the witness with or exempt him from a legal liability. The fact that a judgment against the defendant may cause an assessment of the witness and other members of the order, does not make him
Under section 399 of the old Code it was held that shareholders in banks were competent to testify to personal transactions with the decedent in actions between the representative of the decedent and the-banks. (Montgomery County Bank v. Marsh, 7 N.Y. 481" court="NY" date_filed="1852-12-05" href="https://app.midpage.ai/document/montgomery-county-bank-v--marsh-3613752?utm_source=webapp" opinion_id="3613752">7 N. Y. 481; Washington Bank v. Palmer, 2 Sandf. 686" court="None" date_filed="1850-02-15" href="https://app.midpage.ai/document/washington-bank-v-palmer-8357518?utm_source=webapp" opinion_id="8357518">2 Sandf. 686.) The last clause of section .829, which provides, “ A person shall not be deemed interested for the purposes of this section by reason of being a. stockholder or officer of any banking corporation which is a party to the action or proceeding, or interested in the event thereof,” was added, by chapter 703 of the Laws of 1881, to conform the section to the cases of which -those last cited are types; and it was not intended by the amendment tó render all persons interested in al'1 corporations other than banks incompetent to testify to personal transactions with decedents in actions between corporations and representatives of. decedents.. The purpose of the addition was not to restrict but to settle the question in respect to the competency of shareholders- of banks in accordance with the decisions. The rule contended for by the learned counsel for the plaintiffs would exclude the officers and employees of. mutual life or fire insurance companies, holding
The theory of the section is to render incompetent as witnesses-against the representative of a decedent, as to personal transactions-with decedent, parties to the action, persons from or through whom title to the subject-matter of the action is derived and persons for whose benefit the action is prosecuted or defended — persons directly interested in the event of the action — and no others.
Again, when an objection is made that a witness is incompetent.. to testify, the burden is upon the objector to show such in competency. (Cary v. White, 59 N. Y. 339; Edington v. Ætna Life Ins. Co., 77 id. 571; People v. Schuyler, 43 Hun, 88; affd., 106 N.Y. 298" court="NY" date_filed="1887-06-28" href="https://app.midpage.ai/document/people-v--schuyler-3592886?utm_source=webapp" opinion_id="3592886">106 N. Y. 298.) It was not shown that the knowledge of the witness-in respect to the non-payment of the monthly dues and assessments arose out of personal transactions with the decedent. Indeed, the defendant sought to show, that neither Schaufer, nor any one in his behalf, had paid the monthly dues.
The second objection, that it was incompetent to show the nonpayment of assessments without first showing that notices of the; assessments had been given as required by chapter 341 of the Laws-of 1876, as amended by chapter 321 -of the Laws of 1877, is not ' tenable. These statutes were repealed by chapter 690 of the Laws-of 1892, previous to the issuing of the certificate in this case, and the provision in respect to the non-forfeiture of life policies for nonpayment of premiums, unless notice is given of the time when payable, was incorporated into section 92 of chapter 690, which section relates to policies issued by life, health and casualty insurance corporations, and does not relate to certificates issued by fraternal societies. Article 7 of this chapter relates to fraternal Beneficial societies, of which article section 233 is a part, and it provides that such societies, organized under the laws of this or of other States, are exempt; “ from the provisions of the other insurance laws of the State andi
I think that the court erred in refusing to permit the officer of the defendant, whose duty it was to collect the monthly dues, to testify that the monthly sums due from Schaurer were not paid.
As before stated, it is alleged in the. complaint that the certificate upon which the áction was. brought ' was issued upon an application made by Schaurer and accepted by the defendant. The effect of the allegation is that the application and certificate eonsti.tuted the contract. The defendant offered this application in evidence, the execution of which was admitted, which was objected to by the plaintiffs upon the ground that the certificate did not refer to the application and make it part of the contract. . The objection was sustained, and the defendant excepted. The certificate provides that a member who has- “ obtained his membership by fraud br misrepresentation as to his age, physical condition or occupation when admitted to membership ” shall not be entitled to recover. One of the defenses interposed was that Schaurer, when he joined the society, was engaged. in a prohibited occupation, which fact he concealed from the. defendant. The rejection of the application, was error.
The judgment and order, should be reversed, and a new trial granted, with costs to abide the event.- .
All concurred, except Adams, J., not sitting.
Judgment and order reversed, and a new trial ordered, with costs to abide the event. - .