200 A.D. 843 | N.Y. App. Div. | 1921
Judgment reversed and a new trial granted, with costs to appellant to abide the event. An examination of the record in this case discloses the fact that the trial court construed the contract between the society and the member to consist of the bare certificate itself, and failed to consider the all-important factor that the certificate alone did not constitute the contract between the parties in its entirety. If the court’s action in so doing is carried to its logical conclusion, then a recovery upon such certificate could not be had for any definite sum of money. The wording of the document itself is not a promise to pay $2,000, but a promise to pay “ a sum of money not exceeding Two thousand dollars,” and this only “according to the provisions of law governing said fund.” Contracts of a like nature have been construed to embrace, not only the certificate, but the application for membership, the corporate by-laws, the charter of the society and the statutes. (See Sabin v. Phinney, 134 N. Y. 423; McClement v. Order of Foresters, 222 id. 470.) These elements the court seems to have ignored, and in so doing, we conclude, committed reversible error. The whole course of the trial seems to have been directed to the charge of fraud on the part of the society in effecting the settlement and that appears to be the main issue determined. On this phase of the case we conclude that the finding of the trial court is against the weight of the evidence. The findings of fact numbered XI, XII, XIII and XIV, as found by the trial court, are reversed and rescinded. Blaekmar, P. J., Putnam and Manning, JJ., concur; Mills and Jaycox, JJ., vote to affirm, on authority of Kennedy v. Supreme Council C. B. L. (188 App. Div. 613; affd., 231 N. Y. 582). Settle order before Mr. Justice Manning.
