
    Catherine J. Fanning, Respondent, v. The Supreme Council of the Catholic Mutual Benefit Association, Appellant, Impleaded with Honora Dalton, Respondent.
    
      Certificate of insurance in a mutual benefit insurance association — change of beneficiary —failure to surrender a certificate outstanding in the hands of the beneficia/ry when a new certificate was issued —payment of dues by the beneficiary — estoppel.
    
    June 19, 1894, John Brophy, who was a member of a mutual benefit life insurance association, procured from it a benefit certificate for §2,000 in which his daughter Honora Dalton was designated as the beneficiary. The certificate was given to the said Honora Dalton, who kept it in her possession until her father’s death, which occurred April 20, 1900. December 13, 1894, the said John Brophy applied to the association for, and obtained, a duplicate of the certificate issued to Honora Dalton, alleging that such certificate had been lost or destroyed. Subsequent to the issuance of the duplicate certificate Brophy surrendered the same and obtained a new one which provided that his daughter Catherine should receive §1,200, his daughter Honora §500 and his son John $300.
    The by-laws of the association in force at the time the last-mentioned certificate was issued provided as follows: “ A member may at any time change, alter or amend the designation of person or persons to whom the beneficiary named in his certificate is payable, by surrendering said certificate, after having filled or caused to be filled, the blank which shall be provided for that purpose on the back of the same, providing for new designation, and attach his signature to it. * * * Upon the receipt of the same by the supreme recorder, he shall issue a new certificate in accordance with such change of designation."
    
      So far as appeared, the by-laws in force at the time when the duplicate certificate was issued contained no provision relating to the' issuance of a certificate in place of one that had been lost or destroyed. It was not shown that any contract existed between John Brophy and his daughter Honora, that she should continue to be the beneficiary of the certificate delivered to her or that any fraud had been perpetrated upon her.
    
      Held, that the benefit association was liable upon the certificate last-issued by lit; That the certificate held by Honora Dalton, and which- her father declared had been lost or destroyed, could not be enforced against the association unless the association was in some manner estopped from denying liability thereon, and that proof that payments of dues and- assessments had been made by the daughter Honora, not accompanied by proof that the benefit association was aware of it, was insufficient to establish such an estoppel;
    That the provision of the by-laws, requiring the surrender of an outstanding' certificate as a condition precedent to the issuing of a new certificate, was for the benefit of the association, and might be and had been waived by it.
    Hatch, J., dissented as to costs.
    Appeal by the defendant, The Supreme Opuricil of the Catholic Mutual Benefit Association, from a judgment of the Supreme Court in favor of the plaintiff and the defendant, Honora Dalton, entered in the office of -the clerk of the county of New York on the 3d day of February, 1903, upon the decision of the court rendered after a trial at the New York Special Term.
    
      J. Arthwr Corbin, for the appellant.
    
      James Kearney, for the plaintiff, respondent.
    
      A. 8. Gilbert, for. the defendant, respondent.
   Patterson, J.:

The plaintiff in this action was the holder of • a benefit: certificate issued by the defendant, the Supreme Council of the Catholic Mutual Benefit Association, to her father, John Brophy, on or about the 5th day .of February, 1895. That certificate provided- that Brophy was entitled to participate in the beneficiary-fund of the association to the amount of $2,000, which sum at his death was to be “paid to his daughters Catherine Fanning, $1,200; Nora Dalton, $500, & his -son; John Brophy, $300.” John Brophy, the son, assigned his interest in ■ the certificate to the plaintiff. The action was originally brought against the association alone, but -it being shown to the court that Honora Dalton claimed the whole amount of $2,000 under circumstances presently to be mentioned, an order was made bringing her in as a defendant, and in her answer she claimed to be the holder and owner of a benefit certificate issued by the defendant to John Brophy and that she was. entitled to recover from the association the full sum -of $2,000.

It appeared in evidence on the trial that in January, 1891, John Brophy became a member of Branch No. 106 of the defendant association ; that he procured from the defendant a benefit certificate in the amount of $2,000 in which his wife was named as the beneficiary. She died in 1894. He then surrendered that certificate and procured a new one, dated June 19, 1894, in which he designated his daughter, the defendant Honora Dalton, as a new beneficiary. On receiving that new certificate, it was given to his daughter, Honora Dalton, and it appears that she held it and had it in her possession at the time of the death of her father, which occurred on the 20th of April, 1900. Meantime, and on or about the 13th of December, 1894, her father made an application to the defendant association for a reissue to him of a certificate in place of the one held by Honora Dalton. He made a declaration in writing to the defendant that the certificate of June 19,1894, issued to him by the association and which was payable to Honora Dalton, had been lost or destroyed and his application was for a duplicate of the same. That application was granted, and a new certificate payable to Honora Dalton for $2,000 was issued, dated December 18, 1894. On January 24, 1895, John Brophy (the father) surrendered the last-mentioned certificate to the association and took out a new one, being the on© first mentioned above as that upon which this action was brought. The court directed judgment in favor of the defendant Honora Dalton for the sum of $2,000, with interest and costs, and in favor of the plaintiff against the defendant association for $1,500, interest and costs, thus holding the defendant association to a double liability, evidently upon the theory that it was indebted to both the plaintiff and the defendant Honora Dalton upon independent certificates.

That the plaintiff is entitled to recover on the certificate held by her, and the defendant Honora Dalton cannot recover on the one held by her, we think plain. The defendant association is an incorporation having the power to make by-laws for its government and rules and regulations respecting the issuing of benefit certificates to members of its branches. In 1894, when John Brophy, the father, sought to change the: beneficiary under the certificate payable to Honora Dalton, section 5 of the beneficiary fund law of the defendant association provided that a member may at any time change, alter or aménd the. designation of person or persons to whom the beneficiary named in his certificate is payable, by surrendering said icertificate, after having filled or caused to be filled, the blank which shall be provided.for that purpose on the back of the same, providing for new designation, and attach his signature to it. * * * Upon the receipt of the same by the supreme recorder, he shall issue a new certificate in accordance with such change of designation.”

When the change of beneficiary was effected here, a certificate payable to Honora Dalton was surrendered, and there was a technical compliance, therefore, with the provisions of this by-law. It is claimed, however, that the new' certificate could not be issued without the surrender of the identical one that had previously been issued to and was held by the defendant Honora Dalton. There does not seem to have been a provision in the by-laws, at the time of the reissue of the certificate, relating to the substitution of another for a lost or destroyed certificate. Such a.provision .was subsequently made, but is not applicable to this case. The provision with respect to the surrender of an outstanding certificate precedently to the issue of a new one is made for the benefit of the association, and, under the rules and regulations of this defendant association, does Hot differ from a like provision in the constitution and by-laws of the Catholic" Benevolent Legion, considered in Moan v. Mormile (37 App. Div. 614). The provision being for the' benefit of the association, may be waived, and in this case it was waived.

We do not find anything in-the evidence to establish that there was fraud or wrongdoing in the substitution of the one certificate for the other. John Brophy,-the member of the association, had, the right to name a new beneficiary. That was secured to him by the 5th section of the beneficiary fund law. -It was a right which did not depend either upon the consent or the volition of a named beneficiary. The object of Brophy in obtaining a new certificate was undoubtedly that he might change the beneficiary upon: surrendering a certificate, and thus become able to comply with the by-law of the association, but it is not shown that any contract •existed between him and his daughter, Honora Dalton, that she should continue to be the beneficiary or that , she had a lien upon the certificate, or that fraud or wrong was perpetrated upon her.. There was an attempt made on the trial to show fraud, but none was proven. Thus we have a case of two certificates outstanding, but they relate to the same insurance, if it may so be called. But one -obligation was assumed by or imposed upon the association. The certificate held by the defendant Nora Dalton was not a negotiable instrument; it was subject to change, and it cannot be enforced against the defendant association unless that association is in some way estopped from denying its liability upon it.

It is claimed that such an estoppel exists, because Honora Dalton paid the dues and assessments upon the certificate during her father’s lifetime, but it is not shown that those dues and assessments were accepted by the defendant association with the knowledge that the money they received was that of Honora Dalton, or that she was paying them from her own resources, or that they were being paid on account of that particular certificate. The evidence does not show that dues and assessments were paid on two certificates.

Being of the opinion that there is but one liability of the defendant association and upon one certificate only, the judgment entered below was erroneous and should be modified so as to adjudge that the plaintiff is entitled to recover of the defendant association the sum of $1,500, and the defendant Honora Dalton is entitled to recover the sum of $500, with interest on both sums from the date of the death of John Brophy, Sr. Costs of the appeal to the appellant, the Supreme Council.'

Ingraham and McLaughlin, JJ., concurred; Hatch, J., dissented as to costs.

Judgment modified as directed in opinion, with costs of appeal to the appellant, the Supreme Council:  