70 N.Y.S. 32 | N.Y. App. Div. | 1901
This action was tried at Trial.Term without a jury. At the close of the plaintiff’s case the defendant moved to dismiss the complaint, which motion was granted.
The defendant is a co-operative or assessment insurance company. On the 15th of February, 1881, the plaintiff became a member of the corporation, and the defendant issued to him a certificate of membership, a copy of which is annexed to the complaint. The complaint alleges that this certificate contained the terms of the agreement between the plaintiff and the-defendant; that the agreements of the said defendant were made' by it to induce the plaintiff to consent to become a member of the corporation and to take the said insurance upon his life, and that in consideration thereof and relying upon the defendant’s promises of the same, the plaintiff assented thereto and made the payment expressed in the said certificate or policy of insurance; that the plaintiff duly made all the payments provided for by the said agreement down to the time of the commencement of the action, and also other large sums illegally claimed by the defendant in excess thereof, down to call No. 96, made on the 1st of February, 1898, whereby the defendant demanded of the plaintiff the sum of $138.85, instead of the agreed call of $11.25; that the defendant has notified this plaintiff that neither he nor his wife has any further claim thereunder upon the said defendant; that “ by' reason of the said wrongful, illegal and fraudulent acts of the said defendant, this plaintiff has the right to demand and have- the repayment to himself from the said defendant, with interest, of all moneys paid by him to the said defendant hereinbefore set forth, by reason of its rescission of its agreements made by the said defendant with this plaintiff in the said certificate or policy of insurance.” Wherefore, the plaintiff demands judgment against the defendant to recover the amount paid by him to
Upon the trial the plaintiff put in evidence the certificate of membership. That certificate recited that in consideration of the statements and representations contained in the application for the certificate, “ and in further consideration of the sum of dollars and cents to them in hand paid by the member under this Certificate, and of the annual payment of Six dollars and cents on or before the first day of October in every year during the continuance of this Certificate, and of Eleven dollars and twenty-five cents, being the amount of assessment payable within thirty days from the date of each notice, do hereby receive Isaiah Keyser of New York, County of New York, State of New York, as a member of this Association. And the said Association do hereby promise and agree, in event of decease of said member, to make an assessment upon the entire membership for such a sum as has been established by the Board of Trustees at the date of entry, And of the sum received from such assessment to set aside as a Reserve Fund twenty-five cents on each $1,000 in force, and the balance shall be paid at the office of the Association in the City of New York to Augusta W. Keyser, wife, of New York, County of New York, State of New York, or to his legal representatives, within sixty days after receipt of satisfactory evidence to the Association of death during the continuance of this Certificate of Membership. The sum paid under this Certificate shall not, however, exceed Five thousand Dollars.” It further provided that “ this Certificate is issued, and accepted by the member, subject to the following express conditions and agreements: * * * ; if any of the payments above stipulated shall not be paid when due at the office of the Association in the City of New York, * * * then, and in each and every such case, this Certificate shall be null and void, and all payments made thereon shall be forfeited to the Association.”
The application for membership upon which this certificate was issued was also introduced in evidence. It was signed by the plaintiff and contained a provision by which he agreed that, “if there shall be any omission or neglect to pay any of the dues or assessments on or before the days on which said dues or assessments shall fall due, except as provided for in the days of grace by the by-laws
The plaintiff then proved that he had paid under this policy in dues and assessments to the defendant corporation the sum of $2,189.77, and introduced in evidence the call Ho. 96, which required, the plaintiff to pay under the policy the sum of $138.85. This call was as follows:
“ Please take notice that an Assessment or Mortuary Call is hereby made upon you pursuant to the order of the Board of Directors and Executive Committee of the Association for the above amount, to-: be paid within thirty days from the date of this notice; in accordance with the conditions of your certificate or policy and the Constitution or By-Laws of the Association. The above payment must be made on or before the third (3) day of March, 1898. * * *■ If the same is not paid within the time stated, the policy and all payments thereon will become forfeited and void, and your membership with the Association will expire with all rights thereunder.”
The plaintiff was called as a witness and testified that he told the officers of the defendant that the increase in call Ho. 96 was improper, and offered to them the amount called for by the previous mortuary call Ho. 95, but that the defendant declined to accept said sum, stating that the whole amount of call Ho. 96 must be paid in accordance with the notice; that the defendant declined to accept the amount tendered it; that the plaintiff thereupon ceased to be a member after February 1, 1898, and that he now seeks to recover all money theretofore paid to the defendant, with interest.
There is no allegation that the plaintiff was induced to become a member of this association by any fraudulent representations, nor is there any mistake or other fact alleged which would justify the plaintiff in rescinding his membership obligation or the contract under which he became a member of the association. The plaintiff bases his right to relief upon a breach by-the defendant of the contract made with the plaintiff in refusing to receive the amount
It is quite evident that if any demands were made in excess of . those legally made by the defendant, the plaintiff’s remedy was to pay to the defendant the amount which it could legally call upon him to pay, or to tender such an amount, when, if such tender was good, the policy would be kept alive and the beneficiary would be entitled to recover under it the amount provided upon the plaintiff’s death. The plaintiff proved that he had tendered to the defendant under this call No. 96 an amount in excess of that provided for in the certificate of insurance. If that tender was all that the defendant was entitled to demand under the contract, the effect of the tender would be to keep alive the contract of insurance. The plaintiff alleges that he ceased to be a member of the defendant upon the 1st of February, 1896, but just how he ceased to be a member is not stated. It may be assumed that the plaintiff understood that he ceased to be a member by virtue of his refusal to comply with what he claims to have been an illegal demand; but if his construction of the contract is correct, the mere failure to pay an illegal demand, having- tendered the amount that the defendant was legally entitled to call upon him to pay, would not terminate his membership in the corporation or the right of the beneficiary to recover the amount payable upon his death; or if there was a breach of the contract by the defendant, the plaintiff would be entitled to recover the damages sustained by the breach;
It follows that the judgment appealed from must be affirmed, with costs.
O’Brien and McLaughlin, JJ., concurred ; Van Brunt, P. J., dissented.
Judgment affirmed, with costs.