
    Maggie Fitzgerald, Pl’ff, v. The Equitable Reserve Fund Life Association, Def’t.
    
      (City Court of New York, Trial Term,
    
    
      Filed November 20, 1888.)
    
    1. Insurance (life)—Life association policy—Must conform with the PROVISIONS OF THE CERTIFICATE OF MEMBERSHIP.
    Where the application for a “policy” or certificate of membership in a Life Association, contained an agreement, that the constitution and by-laws should form part of the certificate to be issued thereon, and the certificate is issued and delivered, and it is not shown, that the by-laws or constitution were ever read or exhibited to the applicant, any provisions of the latter, inconsistent with the fair intent and purport of the language of the certificate, must be disregarded in construing the contract of the company with the applicant or beneficiary. In such case, assuming that the provision in the application, bound the applicant and his beneficiary, still the latter would have the right to assume, that the provisions of the by-laws would be consistent with, and not hostile to the terms of the policy or certificate.
    3. Same—Defense by company.
    Accordingly Held, that where a certificate of membership, delivered to the assured, plainly indicated, that the beneficiary would be entitled to the full amount named therein, or to the full amount realized from an assessment, upon the members, the company cannot defend by proving that the by-laws authorized a division of the proceeds of an assessment among several beneficiaries.
    Motion for a new trial.
    
      P. Q. Eckerson, for pl’lf; Mc Adam & Mc Adam, for def’t.
   Ehrlich, J.

The blank form of the so called policy, submitted upon the motion, contains this language, “ upon the death of a member, a mortuary assessment shall be made (but not more than one for each death), when the death fund is sufficient to meet the claim thereby arising.”

There can be no doubt that the real intent of the entire instrument, requires that the word “sufficient” should be read “ insufficient ” and so counsel on both sides have treated it, in their briefs.

The plain meaning of the contract is, that defendant shall make a mortuary assessment to meet each death loss, unless the fund is already sufficient for that - purpose.

The proof elicited from defendant’s president, showed that such assessment, would have realized to the company, the full amount of the recovery herein, besides the reserve, which the by-laws provided for.

It further appeared, that an assessment had been made, realizing upwards of $11,000, and the burden was then upon defendant, to show that plaintiff was not justly entitled to-recover the full.amount of her demand therefrom.

It is true there is a provision among the by-laws which tends to limit the number and amount of assessments to be levied upon the members, but this is a provision for their benefit, and might be waived by them if assessments were made in excess of that limit, which, therefore, the living members were not bound to pay, but in fact did pay, the defendant would be required to meet the demands of its beneficiaries to the extent of such payments.

This provision is not specially pleaded as a defense, and its only bearing or pertinency would be its influence upon the amount realized from the mortuary assessment to be levied upon the death of each member, and it furnishes an additional reason for holding that the fair intent and meaning of the contract is that the rights of each beneficiary as to the mortuary fund shall not be confused or intermingled with those of other claimants.

It appears also that some provisions of the by-laws justify the inference that a co-mingling of claims and an apportionment of assessments was contemplated.

The question thereupon arises, the by-laws being referred to, in the policy and the application therefor, and being inconsistent therewith, wdiich must prevail?

The better reason seems to require that in case of conflict, the language of the policy shall prevail over the terms of the by-laws.

The holder of the policy had a right to understand from its terms that the beneficiary thereunder would receive upon his death either $2,000 or the full amount of. an assessment ordered for her benefit, less the twenty-five per cent reserve. He had a right to assume that the by-laws, to which it is not claimed his attention was called, would be consistent with its provisions and adapted to carry them out.

These considerations render unnecessary a critical review of the rulings upon evidence at the trial. It was not claimed that there was sufficient evidence as to alleged misrepresentation to justify the submission of that issue to the jury if it was error to admit the policy, except in connection with the application therefor and the by-laws. These also were received at a later stage, and the error, if any, was thereby cured.

At the close of the trial, defendant did not ask the submission of the cause to the jury, and if the real contract between the parties has been rightly construed, then plaintiff would be entitled to seventy-five per cent of all a full assessment would realize up to the amount of the policy, and if, upon the evidence, the jury had found a verdict for less than $2,0.00, the court would have been legally constrained to set it aside.

The real question is thus narrowed down to the interpretation of the contract itself. Although not free from uncertainty, the court inclines to that meaning which seems the more consonant with justice and the fair intent and understanding of the parties.

The motion for a new trial is denied.  