85 N.Y.S. 613 | N.Y. App. Div. | 1904
This is an action on a beneficiary certificate issued by the defendant, a fraternal assessment association, to one Louis Fontaine, a member, by which upon his death it promised to pay a beneficiary fund to the plaintiff. Fontaine died on the 1st day of April, 1901. He applied for membership in the defendant by an application in writing dated the 9th day of April, 1886, in which he designated his daughter Henrietta as the beneficiary subject to change pursuant to "the laws of the defendant. A beneficiary certificate was issued to him on the 11th day of April, 1886, in accordance with the designation contained in the application. On the 1st day of September, 1886, he surrendered this certificate to the defendant, in the form and manner required in case of a change of designation of beneficiary, and requested that a new certificate be issued designating “ Delima Tramblay dependent ” as his beneficiary. The defendant duly accepted the surrender of the first certificate .and issued to the deceased member a new Certificate dated the 1st of. September, 1886, in and by which—Upon condition that the material statements contained in his application.and in the. medical examination, were true and that he would strictly comply with the laws, rules and regulations of the legion — it agreed, upon the death of the member in good standing, to pay out of its benefit fund to “ Delirna Tramblay dependent ” the surn to recover which this action, was brought. This certificate was duly accepted by him in .writing. The contention ,pf. tlie defendant is that the plaintiff was mot a
At the commencement of the trial the plaintiff moved for judgment upon the pleadings upon the theory that the defendant was estopped from contending that the plaintiff was not a “ dependent.” This motion was denied. The plaintiff then rested her case upon the admissions contained in the pleadings. The defendant thereupon moved for a dismissal of the complaint upon the ground that the plaintiff had failed to show that she was a “ dependent ” of the deceased within the intent and meaning of the defendant’s constitution, by-laws and the beneficiary certificate. The court denied the motion. The.defendant. thereupon, under .plaintiff’s -objection" and
We think the defendant was estopped" from claiming that the certificate was invalid on the theory that it had not authority to issue the same except to a member of the family of the decedent or to some one having a lawful claim upon him for support. It is neither averred nor claimed that the defendant was induced to issue the certificate'designating the plaintiff as the beneficiary by any deception or fraudulent misrepresentation; nor is its cancellation demanded or sought.
The decedent was under no obligation to continue his member-, ship or" the payment of assessments. The presumption is that during the fifteen years, which elapsed between the issuance of this certificate and the death of. the member he remained a member and paid his dues, relying upon the faith of this certificate that the plaintiff would be the recipient of the moneys due from the defendant upon' his death. It cannot be assumed, in view of the change of designation of beneficiary, that he would have continued paying assessments, either for his previously designated beneficiary or as a gift to the defendant.' He1 evidently considered that the plaintiff was dependent upon him for. support, and felt obligated to support her, and it cannot be said that he did not act in good faith with the
It follows that' the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. .
Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.