
    Herbert S. Fulmer et al., Resp’ts, v. Union Mutual Association, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1887.)
    
    Insurance (life)—Mutual benefit associations—When corporation BECOMES LIABLE TO PAT.
    In an action brought to recover on two certain policies of insurance issued by the defendant, a corporation organized upon the co-operation or assessment plan, it was shown that an assessment upon its members would have brought in more than sufficient to pay the amount due on the policies and that there had been due proof of death of the assured, who was a member thereof. The complaint set out the certificates of insurance, in each of which were words of promise to pay, substantially as follows: “ The Union Mutual Association agrees to pay the sons of Carl G., * * * share and share alike, $1,000, * * * .” It alleged the proof of death and, lapse of time, failure to pay, and that the amount became due at a specified date; that defendant promised to pay and its failure to pay. The defendant gave no evidence of any defense. Held, that the plaintiffs showed a breach of the defendant’s contract; that they were entitled to recover the amount of said policies. Following Freeman v. The National Benefit Society, 5 FT. Y. State Rep., 83.
    Appeal from a judgment entered in Onondaga county upon the report of a referee in favor of plaintiffs for the amount of two policies of insurance issued by the defendant upon the life of George Fulmer, the father of plaintiffs. The policies were issued by defendant in 1885, and the death of George Fulmer occurred June 14, 1886, and proofs ■of death were duly made and delivered and received by defendant.
    Defendant admitted its incorporation in its answer, and defendant claimed plaintiffs are not entitled to a money payment, and insists that a breach of defendant’s promise was not shown, and that the proper measure of damages was not shown upon the trial.
    After finding the facts shown in his report the referee found as a conclusion of law that the defendant was liable for the amount stated in the policies.
    Defendant is organized under the laws of the state of Michigan, and “is engaged in insuring the lives of the members upon the co-operative or assessment plan.” The insured became a member.
    The association derives “the means to pay a given death loss” by “contributions from the members, called for and paid whenever a loss occurs.”
    Proofs of the death of the insured were made and delivered about July 1, 1886, to defendant in form satisfactory, and defendant, on the 19th of January, 1887, by its board of directors, adopted a resolution declining to pay, basing its refusal upon circumstances “surrounding the malting of the application, and not upon any failure to pay any assessment or annual dues, * * * or any defect in the proof, or any want of ability to make an assessment to pay said death loss, or of ability to realize sufficient funds upon an assessment to pay the beneficiaries * * * .”
    Charles E. Foot, secretary of defendant, was at Syracuse negotiating a settlement of the claims of plaintiffs, and on the 19th of October, 1886, he wrote to one of the plaintiffs-a letter, stating: “I will see you early next week, and then and there expect to render you full satisfaction as to your claim.” And on the 19th of January, 1887,' Foot, the secretary, gave notice of a resolution of the board of directors of defendant, “ declining to pay the same.” He stated in the negotiations that “the last assessment brought in about $9,000.”
    Upon the trial plaintiffs vere allowed to amend their complaint so as to conform to “the facts proven on the trial.” No order is in the record, or any appeal from the order allowing the amendment.
    The complaint sets out the certificates of insurance. In each of them are found words of promise to pay, substantially as follows: “The Union Mutual Association agrees to pay to the sons of Carl G- * * * share and share alike, $2,000 * * * ”
    It alleges the proof of death, lapse of time, failure to pay, and that the amount became due October, 1886; that defendant promised to pay, and its failure to pay.
    Defendant gave no evidence of any defense.
    
      Ames, Platt & Weston and Floyd R. Mechem, for appl’t; Homer Weston, for resp’ts.
   Hardin, P. J.

Two principal grounds are relied upon by the appellant to secure a reversal. The first is that the plaintiffs have not shown a breach of defendant’s contract, and if so, that the damages are only nominal, and not the amount of the two certificates or policies; and, secondly, that error was committed in receiving evidence.

We think the case is brought within the decision made in the third department, in Freeman v. The National Benefit Society, (5 N. Y. State Rep., 82), and that we should follow that decision, and we, therefore, sustain the judgment of the referee. See, also, Lueders v. Hartford Life Ins. Co., 2 Abb. Nat. Dig., 789, § 131.

Judgment affirmed, with costs.

Follett and Martin, JJ., concur.  