63 N.Y.S. 1012 | N.Y. App. Div. | 1900
The defendant is a society incorporated under the laws of the State of New York, the chief feature of the corporate business being that of a mutual benefit association, which issues to its members certificates in the nature of life insurance policies. In the year 1883 it issued to George S. Ellis a certificate, called a bond, of the character mentioned, which constitutes a direct contract between it and the assured and the beneficiary named therein. The defendant appears to be a central organization, with branches in various localities, such branches being called councils, one of which was the United States Council No. 1, located at Brooklyn, New York. Membership of a council is a prerequisite to the right to a certificate. That issued to George S. Ellis recites that it was issued upon evidence that he was a member of United States Council No. 1, and upon condition that he “ complies with the laws, rules and regulations now governing this Union, or which may hereafter be enacted for its government, and is in good standing at the time of his death.” It provides further as follows : “ The said The National Provident Union hereby agree to pay out of the Provident Fund to his wife, Eliza A. Ellis, the sum of $2,000, in accordance with and under the laws and limitations governing this Union, upon satisfactory evidence of the death of said citizen and the cancellation of this bond and the surrender of the Coupon Receipt properly executed, Provided this bond shall at that time he in force, not forfeited, surrendered or cancelled.”
The first ground upon which a reversal of the judgment is asked is the alleged insufficiency of the complaint. At the beginning of the trial a motion was made to dismiss the action because the complaint did not contain an allegation that George S. Ellis at the time •of his death was in good standing, and, secondly, it did not contain an allegation that there was any “ provident fund ” out of which the claim asserted by the plaintiff could be paid. Neither of these •allegations was necessary. A copy of the certificate or policy or bond was annexed to the complaint, and the issuance of that certificate and its possession by the plaintiff was sufficient. There is an .allegation in the complaint that the assured, the beneficiary and the plaintiff had fulfilled all the provisions of the “ bond and insurance ” •on their part to be fulfilled. The certificate was in itself proof of the good standing of George S. Ellis when it was issued, and it will be presumed that such good standing continued until the contrary is shown. We think that it was incumbent upon the defendant to
The course pursued at the trial was such as to allow the defend- ’ ant to show, if it could, that George S. Ellis was not in good standing in the defendant organization at the time of his death. The record before us is confused, but an attempt was made to prove that the assured was suspended because of his failure to pay certain assessments duly levied and which were required to be paid by him in order to keep the insurance effected by his certificate alive. The constitution and by-laws of the defendant provide that whenever a member of a council is suspended his rights under his certificate shall cease or abate until he is properly restored or reinstated within a specified period, and it was claimed that documentary evidence furnished to the defendant by the United States Council No. f established the fact that George S. Ellis had been suspended in December, 1894, for the non-payment of a tax or charge due upon his policy in December of that year. It is not to be controverted that if he were duly and properly suspended and riot reinstated, a claim under this policy is not enforcible; but upon this record it is not clearly proven that the George S. Ellis named in the policy sued on was ever suspended. A report, seems to have been made by the United States Council to the defendant society on the 16th of December, 1894, in which it is stated that i( Geo. S. Ellis,” bearing the roll No. 19, and aged thirty-five, was suspended. The George S. Ellis named in the certificate had the number 22 and was of a different age from that of the person reported as suspended. The identity of the assured in the certificate No. 22 with the sus
It is contended that the proof shows that notice was given in a manner binding upon the member ; that at a meeting of the council the provision respecting the notification under the requirements of section 11 was superseded by a resolution which authorized the members or “ citizens” of the.council to be notified of the levying of an assessment or tax call by the publication in a newspaper called the Cube. Without inquiring as to the authority of the council to adopt a resolution radically changing the method of notification required by the laws of the defendant, it is sufficient to say that there is no evidence that the terms of the resolution were complied with in the way of giving notice to George S. Ellis. That resolution authorized the publication of notice of tax calls in the newspaper as the official organ of the council, but there was a requirement that a copy be mailed to each member in good standing. There is nothing whatever in this record to show that a copy of this official newspaper was ever mailed or sent to George S. Ellis, and no presumption can be indulged in that any such notice was given. To sum it up in a few words, the claim of the defendant is that the policy was forfeited by a non-payment of the tax call or assessment. Before that forfeiture could accrue, it was necessary that notice of the call should be given to George S. Ellis. There is no proof that any such notice was given either in accordance with the provision of section 11 or of the substituted method by newspaper publication.
Various exceptions were taken to rulings upon evidence during the progress of the trial. There is but one which requires consideration, and that is that the plaintiff was allowed to prove that it appeared upon the roll book of membership of the United States Council No. 1 that George S. Ellis was a member in good standing at the time of his death. A subpoena to produce that book had been issued, but it was not actually in court. The defendant’s counsel expressly stated that he objected to the testimony in relation to the contents of the book, but rot because the book itself was not in
The judgment appealed from must be affirmed, with costs.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.