79 N.Y.S. 13 | N.Y. App. Div. | 1902
The action is upon a beneficiary certificate issued by the defendant to William S. Robinson for the benefit of his mother, the plaintiff.
The first ground upon which the appellant contends that it is not liable is that the complaint fails to state and the evidence fails to establish a cause of action against it. The precise contention of the appellant is that neither the complaint nor the evidence shows that the appellant is an assessment beneficiary order, that the decedent was a member thereof or that there is any fund for the payment of the claim. It is alleged in the complaint that the appellant is a corporation duly organized under the laws of the State of Tennessee; that the decedent was duly elected and admitted as a member of the “ Few Amsterdam Commandery, United Order of the Golden Cross, located in Few York, F. Y.that subsequently thereto the defendant executed and delivered to the decedent a benefit certificate which recited his election and admission to membership in said commandery; that he was “a contributor to the Junior Class Benefit Fund of this Order; ” that his application for membership and the statements certified by him to the medical examiner were on file in the office of the supreme keeper of records, and were made a part of the contract, and that it was issued upon condition that he comply “ in the future with the laws, rules and regulations now governing the said Commandery and fund, or that may hereafter be enacted by the Supreme Commandery to govern said Commandery and fund.” The certificate further recited that “ these conditions being complied with, the Supreme Commandery, United Order of the Golden Cross (being the defendant), hereby promises and binds itself to pay out of its Junior Class Benefit Fund to Margaret
The complaint duly alleges the acceptance of the certificate in writing upon the conditions therein named, the death of the member while in good standing before the surrender of the certificate or change of beneficiary and “ that the Junior Class Benefit Fund reached the sum of Two thousand dollars at the assessment called in payment of said certificate, or would have reached said sum if said assessment had been called,” and that payment has been duly demanded and refused. The answer admits all of these allegations of the complaint except that the defendant denies that it has any knowledge or information sufficient to form a belief concerning the death of the member; but it admits the receipt of papers purporting to be proofs of his death. Upon the trial the plaintiff proved the death of the member and the presentation of the proofs of death.
The facts thus admitted and proved clearly made out a ¡prima, facie case of liability on the part of the defendant. In view of the allegations of the complaint which are admitted it appears either that the fund out of which the claim was payable was sufficient for the purpose or that it was insufficient through the omission of the defendant to levy an assessment. The appellant did not contest the claim on the ground of its inability to pay, but on account of alleged false representations on the part of the member in his application.
At the close of the evidence both parties moved for a direction of a verdict, and neither requested to go to the jury upon any question. The court directed a verdict in favor of the plaintiff for $2,000 and interest. The parties thus by consent permitted the court to pass upon any question of fact there might be in the case. It cannot be said that there was a fraudulent concealment of facts as matter of law, and a finding that there was no fraudulent concealment would be supported by evidence.
The decedent died of consumption. In his application, in answer to a question, he stated that his father died of pneumonia,
The appellant bases its claim to the admissibility of this evidence upon section 955 of the- Code of Civil Procedure, which provides as follows: “ All maps, surveys and official records, which shall have been on record or on file in the office of either the register of the city and county of New York, or the surrogate of said city, or any of the courts of record of said city, or the clerk of the city and county of New York, or any of the departments of said city as enumerated in section thirty-four of the New York City Consolidation Act (chapter four hundred and ten, laws of eighteen hundred and eighty-two) or in the office of the registers, surrogates, commissioners of public works, or kindred department or park department, for a period of twenty years or upwards prior to such trial, shall be presumptive evidence of their contents, and shall be receivable in evidence as such upon any trial in any of the courts of this State in any controversy pending therein, between any parties.”
The former provisions of section 955 of the Code of Civil Pro
It follows that the judgment and order should be affirmed, with costs.
Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.
Judgment and order affirmed, with costs.