26 N.Y.S. 186 | N.Y. Sup. Ct. | 1893
This action is based upon a policy or certificate of" membership issued by the defendant, and bearing date August 28, 1891, by which the defendant, “for and in consideration of the representations and warranties made to it in the application for this-certificate, and the sum of four dollars and seventy cents, to it in hand paid, and the agreement to pay a like sum every two months.
1. The complaint sets out the making of the certificate or policy, stating its effect, and a copy is attached. It is alleged that all the conditions of the contract to be performed by .the plaintiff or by Mrs. O’Brien have been performed, or their performance waived by defendant. The death is alleged, and notification thereof in due time to the defendant, and that defendant waived proofs of death. It was then alleged that at the time of Mrs. O’Brien’s death and since that time the moneys collected in the mortuary fund for the pool, out of which the plaintiff should be paid the benefit under the certificate, were sufficient to pay the plaintiff the maximum amount of the shares, being altogether $500, no. part of which had been paid. Judgment for that sum was demanded. In the. certificate it is stated that it is issued and accepted upon the conditions and agreements contained in the by-laws of the association. The case was
The relief granted was not demanded in the complaint, and the defendant claims that in this action the court had no right to grant it. An answer having been interposed, the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issue. Code, § 1207. The fact that the wrong relief was asked is not important. Murtha v. Curley, 90 N. Y. 377. The judgment was based upon the cause of action as alleged and proved. The form and amount of the recovery is regulated by the by-laws which are referred to in the certificate, which is a part of the complaint. The judgment was certainly embraced within the issue, and was also consistent with the case made by the complaint. It was fixed by the certificate and the by-laws. It is not claimed that the judgment is wrong if the court had the power to grant it. Smith v. Society, 64 Hun, 534, 19 N. Y. Supp. 432. We think that the court had the power. It is to be' observed that the defendant had opportunity to go to the jury on all questions that it desired to. It in effect consented that the court pass on all the questions of fact aside from the one submitted, and render the proper judgment. It is not material whether it be called a trial at equity or law.
2. The theory of the defendant on the second proposition is that the application was not approved by the company, and the policy was by mistake delivered to the plaintiff. There is evidence showing that Mr. Sperry, the agent of defendant, saw the plaintiff on the subject of transferring to the defendant a policy she was carrying on the life of her mother in the Flower City Insurance Company, and which she was willing to transfer to the defendant; that, soon after this, Mr. Mahar, who seems to have been acting for defendant at the request of Mr. Sperry, called on the plaintiff, and delivered to her the policy in question, she paying him therefor the premium of $4.70, and receiving therefor the receipt of Mr. Sperry for the defendant; that on the same occasion Mr. Mahar wrote out the application, and it was signed by plaintiff, and she also signed the name of her mother. This was forwarded to the defendant, and there is evidence tending to show that at first it
3. But it is said that the application was not in fact signed by Mrs. O’Brien. She was not present at the time the application was made out by the agent of the defendant, and the policy delivered. The agent asked the plaintiff to sign her mother’s name, and she did so. The plaintiff testifies that her mother knew of the application being made; that she spoke to her beforehand about it. There is in the answer no allegation that the plaintiff did not have authority to act for her mother. On the contrary, it is affirmatively alleged that Mrs. O’Brien made the application. So far as this question is concerned, we think the nonsuit was properly denied.
4. Was the policy forfeited by reason of the failure to pay the premium due November 1, 1891? The plaintiff, a short time before this date, called on Mr. Sperry, who had given her the receipt for the first premium, and offered to pay the premium soon becoming due. He declined to receive it, saying that he had no receipt from the company for her among the receipts that had been sent him, and therefore could not accept her premium. The plaintiff replied she did not understand it, and the result was he promised to call the attention of the company to the fact of her call, and see what there was of it. Apparently the plaintiff heard nothing further about it, and the death occurred on the 12th November. Mr. Sperry was employed by the defendant to assist in obtaining transfers from the Flower City Company to the defendant, and in that matter, to the knowledge and assent of defendant, he gave receipts for the defendant in his individual name for the premiums paid at the time Of the transfer. The plaintiff had such a receipt for her first premium. The defendant knew that Sperry had been accustomed to receive the premiums in the Flower City, and they also employed him to act as their collector. He, however, for any premiums after the first, had in fact no authority to collect except upon receipts furnished by the company. The bylaws of the defendant provided that premiums should be payable at the home office of the association, “but if, for the sake of convenience or otherwise, any premiums are paid to collectors or agents of the association, such collector or agent shall be deemed and held to be the agent of the members so paying, unless the agent or col
Judgment and order affirmed, with costs. All concur.