
    Michael Gienty, Respondent, v. Knights of Columbus, Appellant.
    Second Department,
    October 27, 1911.
    Insurance — benefit insurance — hazardous occupation of member — change in by-laws — knowledge of insured — pleading — informality in showing right to sue.
    A benevolent society cannot escape liability on the death benefit certificate of a member, although he agreed to forfeit membership if he entered upon any occupation deemed extra hazardous by the board ot directors, where the occupation that he entered upon was not deemed extra hazardous at the time of his application for membership, and was only made so by a resolution of directors between the time of the appli- ■ cation and the time the certificate issued, unless it be shown that he had knowledge of the change in tin, list of forbidden occupations.
    Evidence in an action to recover on such certificate examined, and held, that the question as to whether the member had knowledge that hi? subsequent occupation had been made “ extra hazardous ” was for the jury.
    Although an officer of the society testified without contradiction that he told the member before his death that he had forfeited his rights by : following the occupation, the knowledge of the decedent was a question of fact' for the jury. „
    Plaintiff, the father of the insured, and his only “heir at law or next of kin,” sued as the beneficiary, although his wife, who died before the insured, was the designated beneficiary. When the defendant answered setting up the name of the designated beneficiary, the plaintiff, instead of amending, served a reply, alleging the death of his wife before the insured, and that he was the only person entitled to benefit under the certificate. The defendant retained this reply for six years and the case was- tried twice, and once appealed to the Court of Appeals. The charter of the society provided that where there was no designated .beneficiary the insurance money should-go to the member’s “hen- at law,” ■while the constitution provided that the directors had sole power to designate the recipient of the benefit where a designated beneficiary has died and the member has made no other designation, such designation however, not to be in conflict with the charter of the corporation;
    •Held, that, under the circumstances, the defendant could -not take advantage of the technical defect in pleading.
    Appeal by the defendant, the Knights of Columbus, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 1th day of February,. 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of February, 1911, as resettled by an order entered on the 23d day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      William P. Gregg, for the appellant.
    
      John Bright [Thomas Watts with him on the brief], for the respondent.
   Carr, J.:

The plaintiff has recovered a . judgment for $1,000, interest and costs, upon a death benefit certificate issued by the defendant on the life of his son, Peter Grienty. The judgment was entered upon the verdict of a jury on the second trial of the action. On the first trial, without a-jury, judgment was given in favor of the defendant on the merits (55 Mise. Rep; 9-8). This judgment was affirmed by this court (126 App. Div. 934), but it was reversed by the Court of Appeals, with an opinion (199 N. Y. 103). The undisputed facts are as follows:

Peter Grienty made an application in writing for membership in one of the defendant’s subordinate councils, in which he agreed to forfeit his membership should he thereafter enter upon any occupation deemed extra hazardous by the board of directors of the defendant’s supreme council. ■ The application blank had printed upon it an enumeration of certain occupations then deemed extra hazardous. Grienty did not then follow any of these specified occupations. Between the time Grienty made his application and the issuance of the benefit certificate a new list of ■ extra hazardous occupations was made, and this list included that of “ switchmen.” Thereafter, Grienty became a “ switchman,” and while at work was killed in a railroad accident. ■ '

On the first trial it was held that Grienty, by entering into a forbidden' occupation, had forfeited his membership. The Court of Appeals held, however, that the defendant could not escape liability unless it appeared that Grienty had knowledge of the change in the list of forbidden occupations by the inclusion of that of “switchman.” This question of knowledge upon the part of Grienty was the only disputed fact for decision by the jury on the second trial. The defense sought to establish such knowledge on the part of Grienty chiefly' by the testimony of a witness, Herbison. This testimony was uncontradicted, but, as it related to a conversation between a decedent and an officer of the defendant, it was properly left to the jury as a question of fact. The conversation, as this witness testified, consisted of‘his telling Grienty, two weeks before the death of the latter, that the occupation of a switchman was forbidden and forfeited membership in. the Knights of Oolumbus. . He' says he urged Grienty to make a change, and that the latter agreed to do so. There were no other witnesses to this conversation. There was further testimony offered to show that the new list of extra hazardous occupations was announced to the various subordinate councils, and new application blanks were printed and issued bearing the new list of forbidden occupations. That Grienty ever saw the new list or heard of its enumeration is not shown directly, except in a general way by the testimony of Herbison. This testimony is so brief that I do not quote from it. That the jury was entitled to pass upon the question, of Gfienty’s knowledge, under the particular circumstances of the "case, I think is clear. So do I think that' the. record is not such as to justify any interference by this court with the finding of the jury on this point. The next point to which the appellant devotes considerable attention arises upon the pleadings. This action has been at issue six years, twice tried, once in the Court of Appeals, and this question of pleading has been ignored by the defense until the second trial. It arises in this way: The plaintiff sued as bene..ficiary designated in the membership certificate. He was mistaken in this claim, for the designated beneficiary was his wife, the mother of the member, who had died before the member. The defendant answered, setting up the true name of the designated beneficiary. The plaintiff, instead of serving an amended complaint, served a reply, in which he alleged the death of his wife before that of the son, and likewise alleged' that he was the only person entitled to- benefit under the son’s membership certificate. The defendant retained this reply, and the plaintiff claims that it should be considered as an amplification of the complaint. There can be no substantial question of the plaintiff being the sole person entitled to recover .on this membership certificate. There was no existing designated beneficiary at the time of the son’s death. He died without wife or issue. He left a father and'some brothers and sisters. His father, however, was his only “heir at law” or next of kin. The charter of the defendant provided that under such circumstances the money should go to the member’s “heir at law,” which in this case was the father alone. The defendant claims, however, that, under sections -38 and 18 of its constitution, its board of directors has the sole power of designating the recipient of the benefit where a designated beneficiary has died and the member has made • no other designation. But both of these provisions of the constitution expressly declare that such designation shall not be in conflict with the charter of the corporation. As the father was the only “ heir at law ” of the deceased member the charter gave him an absolute right to the benefit, in the absence of an existing designation of beneficiary made by the member. Hence no designation could be made by the board of directors which could change this charter right. Under these circumstances all the discussion in the appellant’s brief as to the form of the pleadings is merely technical.

The judgment and order must be affirmed, with costs.

Jerks, P. J., Thomas, Woodward and.Rich, JJ., concurred.

Judgment and order affirmed, with costs.  