17 Abb. N. Cas. 53 | N.Y. Sup. Ct. | 1885
It is conceded that the plaintiff in her own right as the widow of Benjamin F. Payn, deceased, and as the guardian ad Utern of the infant son of herself and her deceased husband, is entitled to recover $2,000 from the defendant on account of her husband’s death, unless her action is barred, first, by the failure of the husband to pay an assessment during his lifetime to the defendant; or, second, by the failure to serve proofs of death upon the defendant. The two points will be briefly considered:
First. Does the action fail by reason of the neglect of the deceased to pay dues to the defendant ?
The deceased was taken ill on the 3d day of July, 1881, and died August 22, 1881. The claim of the defense is that on the 1st day of July, 1881, the deceased had notice of an assessment which he failed to pay, and in consequence of such failure to pay he forfeited all claims upon the defendant.
There are two answers to this defense: 1st. The defendant alleges that there was a local board of the defendant at Albany where the deceased resided, which had a local secretary as provided for by article seven of its by-laws. It was this local secretary who, as the defendant claims, gave to the deceased the notice of the assessment on July 1, 1881, by depositing the same in the Albany post-office. It is true that by section 2 of article 1 members of the local board were required to pay all assessments and annual dues to the local secretary. It is also true that the section referred to provides that “ said secretary
Second. As to the alleged failure to give proof of death, the facts bring this case within the rule established in Grattan agt. The Metropolitan Life Insurance Company (80 N. Y., 281).
The plaintiff is entitled to judgment for the sum of $2,000 with interest from the date which the certificate of membership issued by the defendant to her deceased husband, shall, according to the legal effect require, with costs of the action.
The findings will be settled on notice.