
    Petrone Wajczeliunas, Respondent, v. St. Peter’s Lithuanian Society, Appellant.
    Second Department,
    October 6, 1911.
    Insurance — when mortuary benefit conditional — evidence — conditions precedent to recovery — admission.
    Where the constitution of a society having a mortuary benefit fund for members provides that the society will pay $200 on the death of a member, but that if there is not more than $500 in the treasury at the time of a member’s death, the beneficiary will receive no benefit, save as certain assessments may be made upon members, the payment of the mortuary benefit is conditional, not absolute.
    Hence, it is incumbent upon a beneficiary suing the society for the $200 benefit to establish that at the time of the member’s death, or when the benefit became payable, there was more than $500 in the defendant’s treasury. .
    ■ That fact is not proved by an admission of the defendant that at the time of the member’s death there was $500 in its treasury, of which $200 were put in in lieu of a bond of the society’s treasurer, such bond being required by the constitution.
    • Appeal by the defendant, St. Peter’s Lithuanian Society, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of March, 1911. ■
    
      Elias Rosenthal, for the appellant.
    
      Charles L. Fasullo, for the respondent.
   Rich, J.:

The defendant appeals from a judgment in favor of the plaintiff in an action to recover a death benefit. The sole question presented on the former appeal (141 App. Div. 852) was whether deceased was a member in good standing at the time of his death. The same question is presented on this appeal, but the contention is without merit. Article 5 of defendant’s constitution, section 1, provides that in case of a member’s death, after having been such mertiber for six months, the society will pay $200. Section 3 provides, among other things. “If in the Society’s Treasury there is found not more than $500.00 (five hundred dollars) then the departed member or member’s wife nearest relatives will receive no mortuary benefit but will not be left without assistance. Every member of the Society will'be obliged to. pay $1.00 in case of death of a member and 500 in case of death of a member’s wife. The sum collected will be paid to whom it belongs.” The constitution is a part of the contract between a member and the society, and this section makes the payment of a mortuary benefit conditional, and not absolute, and it was incumbent upon the plaintiff, before she was entitled to a judgment, to establish that at the time of her husband’s death, or at least when the mortuary benefit became payable, there was in defendant’s treasury more than $500. The only evidence upon this vital question is the admission that “at the time of the death of Jonas Wajczeliunas, the beneficiary’s husband, there was five hundred dollars in the defendant society’s treasury, out of which two hundred dollars were put up in lieu of a bond, by the treasurer, Peter Brezitis.” This admission must be taken as a whole, and does not establish the condition precedent for two reasons: First, it admits only $500; and, second, states that $200 of this amount is money of its treasurer deposited by him in lieu of the bond required by section 3 of article 12 of the constitution. The plain intention and meaning of section 3 of article 5 is that more than $500 of the defendant’s money, applicable to the payment of its liabilities, shall be in its treasury at the time of the decease of a member (or when the benefit is payable) to. give his beneficiary the right to a death benefit of $200, and it must receive that construction.

The judgment of the Municipal Court must be reversed and. a new trial ordered, costs to abide the event.

Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  