
    Anna King, Resp't, v. Masonic Life Association of Western New York, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed, June 21, 1895.)
    
    1. Insurance — Mutual benefit — Notice of assessment.
    Proof that it was the custom of a mutual benefit company to send notices of assessments and that according to its books, a certain notice had been mailed, does not cast upon the beneficiary the burden of showing that such, notice had not been received.
    8. Same — Waiver.
    Prompt payment of assessments may be waived and the right to treat the contract as forfeited suspended, by a course of dealing between the association and a member, which gives the latter the right to assume that prompt payment will not be strictly enforced.
    3. Appeal — Matters not appearing in record.
    A mere reference to an admission of counsel, contained in instructions of the court, .is not sufficient to enable the appellate court.to determine its effect, where the record does not show precisely what the admission was, but only that the court gave instructions that such admission might be-considered by the jury.
    Appeal from a judgment in favor of plaintiff.
    
      Daniel H. McMillan, for app’lt; George W. Wheeler, for resp’t.
   Werner, J.

— The defendant, a mutual, fraternal, assessment, insurance association, issue to the plain tiff Is husband, Joe King on the 14th day of April, 1890, two certificates of insurance, for $2,-000 and $3,000, respectively, designated as being in classes B and 0, respectively. Joe King died June 2, 1891, leaving the plaintiff, his widow, as the beneficiary named in said certificates. At the time of King’s death there were sufficient funds in the treasury to pay the full amount of $2,000 upon certificate No. 1, in class-B, and as to certificate No. 2, in class 0, .the membership was sufficiently large to pay $1,813.24. It was therefore conceded by the defendant that, if the plaintiff was entitled to recover at all. it. would be for the sum of $4,232.68, which included interest to the-date of the trial. Those becoming members of the defendant association were required, by article 10 of its by-laws, to pay a membership fee and an advance assessment, and thereafter to pay assessments as made by the board of directors, in accordance with the table of rates set forth in said article 10. By article 13 of said by-laws it was made the duty of members to pay each such assessment within twenty days after receiving the. notification thereof from the secretary, who was required to send the same to-the members of the class or classes in which the assessment was made. Section 2 of said article 10 provides for the form of notice and the manner of sending the same. It was the custom of the defendant to send its notices by mail to the members, whose names were taken from the books. Under section 6, art. 7, of the by-laws, the board of directors adopted a resolution requiring health certificates to be signed by delinquent members who desired to be reinstated, and delegated to the secretary of the defendant the power to demand, in such cases, either such certificate or a re-examination. ' It is claimed for the defendant that a notice of assessment was sent to Job King on the 1st day of March, 1891, which was not attempted to be paid until the succeeding 25th of May, when the plaintiff mailed to the defendant a check for fifteen dollars. Defendant’s secretary immediately wrote to King, inclosing a health certificate, and stated in his letter “ the remittance is held subject to the return of the health certificate signed.” This health certificate was not signed or returned, and on June 3d, after learning of King’s death, said secretary returned said check of May 25,1891. Between April 14, 1890, and March 1, 1891, various assessments were made upon the members in classes B and 0, upon which said King had been in arreas, and his delinquency had been the subject of correspondence between him and defendant, through its secretary. This feature of the case will be referred to in greater detail further on.

Two questions are presented for our consideration. The first of these relates to the service of the assessment notice of March lr 1891. Was it duly served ? The evidence given by defendant’s secretary and clerk shows that it was the custom of the defendant to send out notices on the first or second day in each month when assessments were made, and that, according to the books of the defendant, a notice was mailed to Job King on the 2d of March, 1891. But Tiffiny, the secretary, testifies simply upon information derived from the clerk and the books ; and Leonard, the clerk, says he has no personal recollection of sending the notices to King, but relies entirely upon the fact that the usual course of business required it, and that the books indicate that it was sent. There is-no affirmative evidence that the notice was ever received by King. To meet this diffiulty, defendant offers two suggestions : First, that the presumption of regularity as to defendant’s corporate acts, is sufficient to place the burden upon plaintiff of proving that the notice was not received; second, the plaintiff’s counsel, in summing up the case, admitted the receipt of notice, and that his admissions are binding upon the plaintiff. As to the first of these suggestions, it may be enough to say that it was incumbent upon defendant to prove affirmatively that this member had, by some act or omission on his part, forfeited his rights under these certificates. Defendant’s custom of sending notices, as proved upon the trial, was, of course, evidence which it was the duty of the jury to consider, but it was not conclusive. We do not concur in the view of defendant’s counsel that the admissions of plaintiff’s counsel upon the subject of notice take that question .out of the case. It is uudoubtedly the rule that an admission made by an attorney, in open court, upon a question germane to the issue, is binding upon his client. Adee v. Howe, 15 Hun, 20. But this rule has its limitations. The client’s responsibility cannot be extended beyond the fair import and meaning of the admissions. There is nothing upon the record to show precisely what the admissions were in this case. The court, in its charge upon this subject, says : “It has been suggested on the part of the counsel, in the submission of the case, that it was admitted that they had received these notices from time to time. While that admission has not gone upon the record, yet you have a right to take it into account, in determining this question which is submitted to you for your determination.” Thereafter defendant’s counsel requested the court to charge “that they had a right to take into consideration, in arriving at their verdict, the admissions made by the counsel for the plaintiff upon his argument before the jury, the same as though it had been admitted in open court before submission.” And the court so charged. It will be observed that, while defendant’s request to charge was complied with, there is nothing upon the record which indicates the extent, or the precise purport, of the alleged admissions ; or which permits us to assume that the ■question as to the notice of March 1st was no longer one of dispute. The charge, which was quite as broad as the request, simply instructed the jury that they had a right to consider these admissions, whatever they were, the same as though, they had been made in open court before the submission of the case. How are we to determine, therefore, that the jury did not find against the ■defendant upon the question of notice ? And, if such was the finding, how can we say that it was not justified by the evidence ?

The only remaining question to be. considered relates to the exception taken by the defendant to that portion of the charge in which the jury were instructed “that unless the defendant association had received from the deceased, from time to time, those assessments after they became due according to the terms of the notices of assessment, and had established that line of credit with the deceased that led him to believe that it would be conducted in the future as in the past, then it would not be absolute to cut him off, it is a question for the jury,” and to the exceptions taken upon the refusal of the court to charge as requested at folios 192 and 194 of the case. We think the submission to the jury of the question whether the defendant, by its course of dealing with King, had waived any of the provisions of defendant’s by-laws, was proper. King became a member April 14,1890. On December 30, 1890, defendant’s secretary wrote a letter to King, in which his attention was called to the fact that he had not paid his admission fee, and that he was “in arrears for an advance asssessment in the O class for $2.40, together with assessment No. 2 for same (which expired September 5th), making a total of $6.80.” The letter concluded as follows: “Kindly let us. know what disposition you wish made of the matter.” In relation to this delinquency the secretary testifies, “I cannot say whether the health certificate was required in this letter or not.” Payment of this $6.80 was received on January 30, 1891, and again the secretary says, “I have no means of knowing, personally, that any health certificate was required at the time"this $6.80 was paid." On February 12,1891, a payment for $8.34 was received “on account of assessments for Nov., Dec., and Jan.1" Upon the receipt was indorsed this memorandum, “Feb. ass’t, $2.78, expires Feb’y 20,’91. Please remit.” The secretary again testifies, “I do not know whether any health certificate was required at this time or not.” Receipts given by the defendant to King, dated July 15, 1890, August 5, 1890, October 6, 1890, and October 20, 1890, show that payments were credited to King, “to be applied as the condition of his account may indicate.” Health certificates were required in only two instances before the receipt by the defendant on May 25,1891, of the $15 check, —one on October 4,1890, because of the nonpayment of the assessment due September 20,1890, and the other on March 10,1891, for nonpayment of assessment due February 20. 1891. It is true that in March and April, 1891, assessment notices were sent out containing the following clause." The sending of this notice shall not be held to waive any forfeiture or lapse of certificates caused by nonpayment of an amount previously due,” and the further indorsement, in red letters : “This notice is sent as a matter of information, that you may know the amount of arrearage which you will be required to pay, should you desire to make application for a reinstatement. Bear in mind that so long as you are in arrears you are not entitled to the benefits of the association.” There is, however, no evidence showing that these notices were in fact served upon King, except as appears by the statements of Tiffany and Leonard, which must be taken with the qualifications that they testify from their knowledge of the usual course of business, rather than from •personal recollection in this instance. The admissions of counsel above referred to cannot be said to apply mure specifically to these notices than to any other; but a more conclusive answer to the argument which these notices seem to furnish the defendant lies in the fact that there is nothing to show that the same form of notice was not used during the period of 1890, when the payments from King were repeatedly received after they had lapsed. Neither is there any evidence showing that anything was ever done by defendant to terminate King’s membership, except by the sending of notices, the terms of which it disregarded when it chose to do so. It was entirely reasonable for the jury to infer that the course of dealing between the defendant and King had not been changed, and was not strictly in conformity with the by-laws or the provisions of these notices. It does not lie in the mouth of the defendant to say that its members are bound by the strict letter of its by-laws and resolutions, so long as it appears that they were waived or ignored by the .defendant. It should be borne in mind that neither the saving clauses of these notices, nor the provision requiring health certificates from lapsed members, are subjects which are regulated by the by-laws of the defendant. These matters seem to have been acted upon by the secretary in the exercise of the power and discretion given him by the board of directors. The presumption of regularity which is claimed for defendant’s corporate acts cannot be held conclusive, as against evidence to the contrary, and all disputed questions arising therefrom were properly submitted to the jury.

This discussion leads us to conclude that the case is brought fairly within the rule of Baker v. Association, 9 St. Rep. 658, and Griesa v. Mass. Ben. Association, 39 id. 1, holding that prompt payment of assessments may be waived, and the right to treat the contract as forfeited suspended,, by a course of dealing between the association and a member which gives the latter a right to assume that prompt payment will not be strictly enforced ; and of Shay v. Nat. Ben. Society, 54 Hun, 109; 26 St. Rep. 579, deciding that the sending of a second notice, when a member is in arrears, is a waiver by the association of its rights to treat the contract as terminated; and of Koelges v. Insurance Co.. 10 Abb. Prac. N. S. 176, that upon disputed evidence the question of waiver is for the jury.

It having been conceded upon the trial that the refusal, of defendant’s secretary to furnish plaintiff with blanks for proofs of death constituted a waiver of the right to demand such proofs, that question need not be considered.

We are of the opinion, therefore, that the charge contains no errors which were detrimental to the defendant; that the case was properly submitted to the jury ; a"nd that the verdict is sustained by the evidence.

Judgment affirmed, with costs.

All concur.  