
    Lizzie Hand, Respondent, v. Supreme Council of the Royal Arcanum, Appellant.
    
      Mutual benefit certificate — advance of an assessment by a collector — deposit thereof by the member — its refusal by the collector — its acceptance again by the member is an acquiescence in the collector’s claim of his suspension.
    
    A member of a fraternal mutual assessment society neglected to pay assessments imposed upon Mm which became due April 30,1897, May 31, 1897, and June 14, 1897, and such assessments were advanced by the collector of such member’s subordinate lodge. A fourth assessment became due on July 1, 1897. On June thirtieth or July first of that year the member caused the amount of the four assessments to be deposited in a certain lock box placed for that purpose in a certain store. The custom and dealing between the parties was such that the deposit in the lock box was not a mere tender, but actual payment, if the member was not in default at the time. On July second the collector, after notifying the regent of the'society that the member was suspended for default in payment, went to the lock box and found the deposit, and some twelve days thereafter he wrote the member stating that he could not accept it and that the member might obtain it by calling at the store in which the lock box was located; he also explained what course the member should take to become reinstated. On receipt of the letter the member obtained the money from the store mentioned and subsequently told one of the officers of the council that he would apply for reinstatement, but took no action in the matter and did not tender payment of an assessment which became due on July thirty-first. In November, 1897, the member died.
    In an action brought to recover upon his certificate it was
    
      Held, that, independent of the effect of the previous payments made by the collector on account of the member’s assessments, the action of the member in voluntarily receiving back the moneys which he had deposited in tin lock box operated as an acquiescence in the collector’s claim of his suspension, whether such claim was right or wrong, and estopped him from asserting the contrary..
    Appeal by the defendant, the Supreme Council of the Royal Arcanum, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of May, 1899, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.
    
      S. M. Lindsley, for the appellant.
    
      Peter R. Gatens, for the respondent.
   Cullen, J.:

This action is brought to recover the amount of a benefit or insurance upon the life of the plaintiff’s husband, issued by the defendant, a fraternal mutual assessment society, organized under the laws of Massachusetts. In 1894 the plaintiff’s husband became a member of the defendant society and received the certificate which is the subject of this suit. He continued such member until July, 1897. In the latter year the following assessments were imposed upon him: No. 242, the time for the payment; of which expired on April thirtieth; No. 243 payable on May thirty-first; No. 244 on June fourteenth; No. 245 on July -first; and No. 246 on July thirty-first. Notices of these assessments were properly given to the deceased, who did not pay or attempt to pay any of them until July. The first three assessments, Nos. 242, 243 and 244, were advanced by the collector of the subordinate lodge or council of. which Hand was a member. The evidence shows that the assessments were paid by members either' to the collector personally or by deposit in certain lock boxes placed for the purpose in stores or shops, from which the money was afterwards taken by the collector. On June thirtieth or July first' the deceased caused to be deposited in a lock box the amount of the first -four assessments. The constitution of the defendant provided that any member failing to pay an assessment within the prescribed time of thirty days should stand suspended from the order and all benefits therefrom, and that the collector should immediately notify the regent of such suspension. On July second the collector of the council notified the regent of the defendant that Hand had failed in his payments and stood suspended. • Afterwards the collector went to the lock box and found therein Hand’s pass book and deposit. Thereupon he wrote the deceased this letter:

“ Brooklyn, July 14, 1897..
“Mr. T. J. Hand: .
“Dear Sir.^1 regret exceedingly that I could not accept the money left at Lenz’ in payment of your dues and assessments. I notified your several times of being in arrears, but no notice was taken of it, till finally I had no option but to suspend you. Tou can get your money oy calling at Lenz’ for it. Perhaps you may like .to know how and at what expense you can get back again. Make application for reinstatement, pass another medical examination ($2.50) and then pay all dues, fines, and assessments, and you will be O. K. The sooner you do this the better. We meet on Friday, July 16th. Apply for reinstatement to Secretary M. E. Doyle, 228 South Fourth St.
“Tours truly,
“E. D. TERBELL.”

On the receipt of this letter Hand sent to Lenz and received the money which had formerly been paid in on his account. He - had some conversation with the secretary of the council in which he stated that he would apply for reinstatement as authorized by the by-laws of the defendant, but he took no action in this direction, nor did he pay or.tender assessment No.• 246. Nothing further passed between the parties, and in November, 1897, Hand died.

We do not think it necessary to follow the counsel in their discussion as to the effect of the voluntary payments made by the collector on account of Hand’s assessments, or whether they inured to the latter’s benefit or not, as we think that the action of the deceased in accepting the return of the assessments precludes the plaintiff from maintaining this action. Under the evidence in this case of the custom and dealing between the parties the deposit of money in the lock box was not a mere tender, but actual payment, if the member was not in default at the time. The case is, therefore, not the same as if Hand had tendered the money to the collector and the latter had refused to receive it. In making the tender the member would do all that it would be within his power to do. But here the collector had taken the money from the box; though he declined to retain it. As a matter of fact he had it and must have retained it, unless the deceased had voluntarily received it back. In this situation the collector wrote the deceased informing him of his suspension and refusing to accept the payment. After receiving this letter the deceased sent for and obtained the money. We think that by this action he acquiesced in the collector’s claim of his suspension, whether that claim was right or wrong, and was estopped from asserting to the contrary. He could not be a member in good standing unless he had paid his assessments in time. If he had paid the assessments in time, then the money he had paid was the defendant’s and he had no right thereto. The collector did not offer to return the money to him as' a gratuity or a loan, .but solely on the ground that it was paid too late. While there was no technical accord and satisfaction between the parties, still the principle controlling accord and satisfaction seems to us entirely applicable to. the present case. In Hills v. Sommer (53 Hun, 392), a dispute arising between vendor and vendee as to the amount of a claim, the latter sent to the former a draft in payment. It was held that the party receiving the draft was bound either to reject it or by accepting it to accede to the vendee’s terms. The same principle was held in Nassoiy v. Tomlinson (148 N. Y. 326); Fuller v. Kemp (138 id. 231); Logan v. Davidson (18 App. Div. 355). We can see no equity or justice in a rule that would permit the deceased to take this money by his own affirmative action and at the same time through himself or his representative assert a claim against the association. The positions are entirely inconsistent, and when the deceased took this money he made his election to accede to the defendant’s claim that he was in default and suspended.

The judgment should be reversed and a new trial granted, costs-to. abide, the event.

All concurred, except Hatch, J., not sitting.

Judgment reversed and new trial granted, costs to abide the event,-  