
    Nora Lounsbury and M. Isabella Whiteside, Plaintiffs, v. The Knights of the Maccabees of the World, Defendant.
    Fourth Department,
    November 11, 1908.
    Insurance — benevolent orders — reinstatement of suspended member — trial — credibility of interested witness.
    Where in an action by a beneficiary to recover against a benevolent insurance, society, she has given evidence that the insurer for some time and to the knowledge of the "insured had disregarded a rule requiring suspended members to make their application for reinstatement in- writing and; that no blanks for such ■ purpose were" obtainable, -it is error to dismiss the complaint, for the question ' of the waiver'of the rule is for the jury.
    Where the rules of such society only require' suspended members to pay arrears due to the society and to the local office as a condition 'for reinstatement, while the dues for-the current month may be paid at any time during that month, a. suspended member who has paid the arrears-.is entitled to reinstatement without tendering the rates for the current month.
    The fact-that the local record keeper on receiving arrears and a physician’s cer: tificate from a suspended member did not,forward them to the main office as required by the rules, does not prevent a reinstatement, for that officer is the agent of the insurer, not of the insured.
    Such local agent is an interested Witness so that his credibility raises a question ■ for the jury. ,
    Kruse, j., -dissented, with memorandum.
    Motion by the plaintiffs, Nora Lounsbury and another, for a new trial upon a case containing exceptions* ordered to be heard at’ the Appellate - Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the Grenesee Trial Term in February, 1907.
    
      Hiram R. Wood, for the plaintiffs.
    
      James M. E. O’Grady, for the defendant.
   Williams, J.:

Plaintiffs’ exceptions should be sustained, and the motion for a new trial granted, with costs to plaintiffs to abide event.

The action was brought' to recover $1,500 upon a certificate of insurance upon the life of the deceased, who was the son and brother of. the plaintiffs. The trial court held that the deceased having prior to his death been suspended, was never reinstated as a member. He had concededly been suspended, when on the 12th day of August, 1905, he sought to be reinstated. He was required by the rules to make a written application, pay all arrears due the defendant and his local tent, and furnish a physician’s certificate, and then the local record keeper was required within two days to report the matter to defendant and remit the amount due it of the arrearages paid. Deceased furnished the certificate and paid all arrearages, but his application was verbal and' not in writing. He died on the 26th day of August, 1905, fourteen days after the attempted reinstatement. It seems the local record keeper kept the certificate and money paid him by the deceased, and never reported the matter to the defendant, or sent any of the arrearages due it.

First. It is urged that there was a failure to make the written application for reinstatement required by the rules, and, therefore, the deceased was not entitled to be reinstated. Evidence was given by the parties as to whether this provision'had been enforced by the defendant or abrogated and disregarded, and it was a question for the jury to determine. If the rule had been disregarded to deceased’s knowledge for some time, and deceased had been led to suppose it was not essential to a reinstatement, then it could hardly be said this would be a ground for holding the deceased was not reinstated.

One very significant fact appears and alone would seem to settle the question against the defendant. There were no blanks obtainable upon which the application could be made as required by the rule. The question should have been.submitted to the jury.

Second. Some claim is now made that the rate for August should have been paid, for the purpose of a reinstatement. Ho such claim was made on the trial, none was made by the local record keeper to deceased when he paid the arrears assumed to be due. More than this, the deceased had the whole month of August in which to pay these rates. It was only dues and assessments for the month of August that he ■ was required to pay, and none of these remained unpaid. They were, so far as they existed, paid by the deceased as a part of the arrears. There is a clear distinction between monthly rates which go to the defendant itself and are uniform during all the months, and dues which go to the local tent, and assessments which are specially made and go, some to the defendant itself and some to the local tent. The only amount here claimed to be left unpaid was the August rates. They were not required to be paid ás a condition of reinstatement. They might be paid any timé during the month of August.

Third. It is claimed that the deceased was not reinstated because tlie¡ local record ■ keeper failed to report the reinstatement to the defendant, and kept the money paid for arrearages and the physician’s certificate, and, therefore, the defendant’s medical examiner never approved of the certificate. Ho claim is made that the certificate was insufficient or that for any reason it would have failed of approval if forwarded' to the defendant, and in fact this point does not seem to have been suggested or urged in behalf of defendant, either on the trial or before this court.

So far as actual reinstatement was the result of the default or neglect of the local record keeper, he was the representative of the defendant and not. of the deceased and defendant could not gain any advantage growing out of. such default or' neglect. (Matter of Brown v. Order .of Foresters, 176 N. Y. 132; Knights of Pythias v. Withers, 177 U. S. 260.)

The facts bearing upon this question, including the credibility of the local record keeper, were for the determination of the jury, who were at liberty to disregard his evidence if the same seemed to them untrue.

He was an interested witness and within the rule relating thereto, being a representative of the defendant here.

There should be a new trial and a submission of the case to a jury.

All concurred, except Kruse, J., who dissented, and Spring, J., not sitting.

Kruse, J. (dissenting):

If the only failure of the assured to comply with the conditions for his reinstatement were the omission of the local record keeper to require the application to be in writing, and report as required, I would agree to the reversal of the judgment directed in favor of the defendant. But aside from that question, and aside from the. fact of his not having paid- the rate for • August (that being the. month in which it is claimed he applied for reinstatement), there is the further provision contained in the rules of the defendant and a part of the contract of insurance, explicitly declaring that the medical certificate and examination must be approved by the supreme medical examiner before reinstatement can take place, which, of course, was not done in this case.

So that, even if the assured had done all which the rules required • him to do, aud the local record keeper had forwarded the medical certificate with an application in writing, it would still have needed the approval of the supreme medical examiner to reinstate the assured.

I do not see how it can be said, under- the circumstances, that the defendant waived these express conditions and requirements, which were a part of the contract of insurance.

I think the case was correctly disposed of at the trial, and that the judgment should be directed for the defendant.

Plaintiffs’ exceptions sustained and motion for new trial granted, with costs to plaintiffs to abide event.  