
    Greenspau v. American Star Order.
    (City Court of New York—General Term,
    December, 1892.)
    In an action by plaintiff, a member of the defendant benefit society, to recover a benefit due him upon the death of his wife, the answer specifically set forth the requirements of the constitution, rules and by-laws. Held, that it was not error to allow plaintiff to prove by parol so much of said by-laws as the answer contained.
    
      It seems, that defendant is estopped from questioning the physician’s certificate of the good health of plaintiff’s wife where it is proven that plaintiff had paid dues as a single member before his marriage, and after-wards as a married man, and so continued to pay until the death of his wife, all of which were accepted by defendant,
    Appeal by defendant from judgment entered against it on verdict returned by jury.
    
      
      A. H. Sarasohn for plaintiff (respondent).
    
      A. P. Wagener for defendant (appellant).
   Van Wyck, J.

This action is by a member of the defendant, a benefit society, to recover a benefit of $500 due Mm upon the death of his wife. When plaintiff first became a member of the defendant, he was single, but afterwards married. The defendant’s contention on this appeal is, that plaintiff was allowed, against defendant’s objection and exception, to prove by parol the provisions of the by-laws, as regards death benefits to such member on the death of his wife, without first laying the proper basis for the introduction of secondary evidence as to the same. But this cannot avail him, for it was not necessary to prove the by-laws at all in view of the allegations of the seventh paragraph of the answer which specifically set forth the requirements of the constitution, rules and by-laws of defendant as regards the duties and rights of such a member, except as to the amount of the benefit due such member, and at folio 59 of the case, defendant admitted that such member was entitled to $500 upon demise of his wife. The plaintiff has proved by competent evidence that he has complied with all the requirements of the constitution and by-laws as set forth in this paragraph of the answer. The plaintiff alleged that he presented to defendant on July 5, 1890, the physician’s certificate of the good health of his wife, and after admission by defendant of due notice to produce this certificate, and his refusal to so produce, he was allowed to prove its contents by parol, and the question and answer at folio 30 shows that it stated that she was well and everything right,” and this was sufficient, and moreover, it would seem that the defendant is estopped from questioning this certificate, for it was duly proven by the financial secretary of defendant, at folio 55, that plaintiff had paid dues as a single member before his marriage in 1890, and afterwards as a married man, and so continued to pay until his wife died in February, 1891; that these dues as a married man were greater than as a single man, and that the same were accepted by the defendant and receipted for by it. This. judgment should be affirmed, with costs.

McGown, P. J., and McCarthy, J., concur.

Judgment affirmed, with costs.  