26 N.Y.S. 33 | New York Court of Common Pleas | 1893
This action was brought to recover so-called sick benefits. The pleadings are in writing. The complaint, among other things, alleges that 'the plaintiff has been a member in good standing of the above-named unincorporated association since the 20th day of October, 1888, at which date he was elected to such membership; that, pursuant to the by-laws of the association, a member who has paid his dues, and who has been for a period of six months a member of the association, is entitled to sick benefits at the rate of five dollars per week when sick, and unable to follow his usual occupation; and that from about the middle of July 1892, to the commencement of the action, the plaintiff was sick, and unable to continue his regular occupation. The answer admits all of these allegations except the allegation that the plaintiff was sick, and unable to work, which is denied. The answer also denies “that plaintiff is entitled to any sick benefits whatever from defendant’s association.” The plaintiff’s mother, under plaintiff’s objection and
While it is true that the defendant had the affirmative of the issue -as to the defense that the plaintiff was admitted to membership through fraudulent representations, we cannot accede to plaintiff’s contention that the defendant failed to substantiate the same. On the contrary, the evidence, in our opinion, strongly supports the following conclusions, among others, reached by the justice, viz.:
■“The undisputed facts show that about eight years ago the plaintiff became afflicted with epilepsy, and has had, since that time, at frequent intervals, epileptic fits. That he was admitted to membership in the defendant association on or about the 20th day of October, 1888, and that prior to his admission he represented to the medical examiner of the defendant that be was in good health, and concealed from the examiner the fact of his -epileptic troubles. The medical examiner, believing the statements so made to him by the plaintiff to be true, certified to the lodge that he was a proper subject for admission. The plaintiff undoubtedly' obtained his membership in the defendant association by fraud and by suppressing the truth.”
We have examined with great care the remaining points relied up-, on by the plaintiff’s counsel as grounds for the reversal of the judgment, but we cannot agree with him in his contentions. It seems clear to us that the judgment was rendered “according to the justice of the case,” as contemplated by section 3063 of the Code of Civil Procedure. Therefore the judgment should be affirmed, with costs.