
    Flora A. Taylor, App’lt, v. Grand Lodge of Ancient Order of United Workmen of State of New York.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1894.)
    
    Insurance—Mutual benefit—-Waiver.
    Circumstances, under which the conditions required by laws of mutual benefit society to be performed before the certificate will issue, will not be implied to have been waived.
    Appeal from a judgment' dismissing the complaint on the merits.
    The opinion of Mr. Justice Ward at circuit is as follows:
    This is an action to recover $2,000 by the plaintiff, who was the wife of one Dwight Taylor, upon the ground that Taylor was a member of Albion Lodge No. 67 of the defendant at the time of his death, January 29, 1892. The defendant is a fraternal and benevolent association, for the mutual benefit of its members, having a beneficiary fund that is raised by assessments upon its members, and issuing certificates to such members that entitle the beneficiary named in the certificate, at the death of the member, to $2.000. Taylor became such a member, in the month of March, 1883, and received a certificate to that effect, payable on his death, to the plaintiff. He continued a member in good standing, paying all his dues, until September 11, 1889, when he was suspended, and, under the laws of the organization, forfeited the certificate and all payments thereon, for his failure to pay a couple of assessments of a dollar each, made upon him by the association to pay losses occasioned by the death of a couple of its members. The laws of the organization required that, if he was to be restored to membership, he must apply within six months after his suspension, have a new medical examination, and go through a proceeding very similar to initiation as a new member. He could then be restored (upon making certain payments) if the lodge so directed. After six months, he could only become a member of the organization by making a new application, having a new examination, pay certain fees, return his old certificate canceled, or furnish an affidavit of its loss. There were two degrees that were taken by the applicant for membership, viz. junior workman’s and the workman’s degrees. Both must be taken to complete the initiation and to create full membership, and, until both were taken, the applicant was not entitled to a certificate, or any of the rights or privileges of the order; and, in making his application, he had to stipulate, and did stipulate, that this should be so. After Taylor’s suspension, lie bad no further connection with the order, paid no dues, was not assessed, and treated his suspension as a fact and as regular and effective from September, 1889, until December 19, 1891, when he made an informal application to the lodge for reinstatement, but did not comply with the laws of the organization in so doing, but his communication was read to the lodge, and objected to as irregular. About the 2d of January, 1892, blanks were prepared for the readmission of Taylor to the organization, a medical examination had, a medical certificate made by the proper lodge officer, and a report made and signed by the investigating committee of the lodge, whose duty it was to investigate his application, and blanks filled out for Taylor to sign, applying for admission to the order and for a certificate and statement as to his physical condition. After the medical examination and the report of the investigating committee had been signed, the application was forwarded to the grand medical examiner of the defendant, and that officer returned the same to the lodge with his approval about the 8th of January, 1892. On the 11th of January, 1892, the lodge had a meeting, and then there was presented to it the report of the investigating committee and of the two medical examiners, and the unsigned application and statement of physical condition and examination.by Taylor; and acting upon that paper, and not upon the informal application that had been signed by Taylor and read to the lodge before, the lodge voted to accept the application, and admit Taylor as a member, upon his complying with the conditions of membership, which were to pay fees of a new member. The recorder of the lodge, on the next day (the 12th of January, 1892), notified Taylor of his election, and requested him to attend the meeting of the lodge, which would be the 18th of January, 1892. Taylor accordingly attended on the 18th, but did not bring his certificate canceled at all or any affidavit of its loss.. He paid $4.25, the fees required of him for complete admission into the order. He was presented with his application for admission, and with his statement of physical condition, that had not been signed, and he signed them. He was thereupon admitted as a junior workman of the order. He was then told that, in order to entitle him to the workman’s degree, he must sign an application for a beneficiary certificate, which he did. That application is most important, and provided “that the certificate issued thereon shall have no . binding force whatever until I shall have taken the workmans degree of the said order, and until countersigned by the master workman and recorder of said Albion Lodge Humber 67." This statement was made necessary and indispensab e to membership, under the laws of the order. It was also provided by the laws that the workman’s degree could not be taken at the same session of the lodge at which the junior workman’s degree was taken, except by unanimous consent. It was proposed to give Taylor the workman’s degree at that meeting, but objection was made, unanimous consent was refused, and the lodge -voted to postpone the giving of the workman’s degree to Taylor for one week, or until the next meeting. The next meeting was January 25, 1892, but Taylor was too ill to attend on that date; had contracted a sickness, with which he died on the 29th of January, 1892, never having taken the workman’s degree or received any certificate under his new application for membership. Proofs of his death were made, and the defendant had immediate notice of his death.
    The contention of the plaintiff is—First, that though the application for a restoration was irregular, that being the only application that had been signed by Taylor at the time the lodge voted to accept him, on the 11th day of January, 1892, the lodge was presumed to have acted upon that application, and to have waived all irregularities, and, he having paid all the fees and all the fees that were demanded of him subsequently, the irregularities were waived by the lodge, they having power to do so, and that Taylor was ipso facto restored as a member, and no new certificate was necessary; that, the report of the investigation committee and of the medical examiners all having been made before Taylor had in fact signed the formal and proper application and statement of physical condition, those medical certificates and examinations must be regarded as having reference to the application for restoration simply, and that, the substance of the regulations of the defendant having been complied with, no new certificate of admission was necessary, and the plaintiff was entitled to recover; or, second, that, if this were not so, then Taylor was in effect readmitted on a new application, because lie had done everything that was required of him, paid all the fees necessary, and had been substantially admitted as a member, and was-entitled to recover, notwithstanding he had not taken the workman’s degree, and had not received a certificate. Neither contention can avail. The evidence shows that the application for restoration was not entertained by the lodge, nor acted upon, and therefore nothing was waived by the lodge. It is true his application was accepted by the lodge before he had signed the necessary papers for readmission, but, before he was admitted to the junior workman’s degree, he recognized the fact that he was proceeding under his new application and for his readmission by signing the necessary papers to accomplish that purpose, and by in no manner insisting upon his informal application for restoration. He paid the fees of readmission, not of restoration, because, under the general laws of the order, if he had been restored he would have to pay the sum equal to all assessments that would have been charged against him had he remained a member for the two years that had intervened from the time of his suspension. As it was, he only paid §4.25. The contract that he had made with the order was that of a new member. He assumed the same relation as he would have assumed if he had never been a member. A waiver cannot be implied under these circumstances. The first proceeding, if it was of any avail whatever, was abandoned or superseded. The lodge, its officer, the Grand Lodge, the deceased, Taylor, by their acts, indicated this. Had there been a restoration simply, no degree whatever would have been taken or made necessary. The signing of the application for the new certificate, and the taking of the degree of junior workman, were such unequivocal acts on the part of all concerned, showing that the proceeding was that of initiating a new member, and not restoring an old one, that it leaves no room for speculation, and this contention has no foundation whatever. .It was a part of the contract between Taylor and the defendant that he should take the workman’s degree before his initiation was complete, or he could became a member. This condition was never performed, and, while that fact is due to the sickness and death of Taylor, it is nevertheless a conclusive answer to the plaintiff’s contention. The laws and regulations of this corporation are matters of substance, and they are binding upon all its members. If Taylor did not become a member, and had not received his certificate, there was no power in the order to assess its members to pay the $2,000, or any portion of the same; and, however strongly the case appealed to their charities and sympathies, the law permitted them to defend upon the grounds they have, and they have made a conclusive answer to the demands set forth in the complaint; and the plaintiff, therefore, cannot recover, but her complaint must be dismissed upon its merits.
    
      John H. White, for app’lt; A. C. Hardwick, for resp’t.
   Per Curiam.

—Judgment appealed from affirmed, pn the opinion of Ward, J., at the circuit.  