
    Gertrude Bettenhasser, Appellant, v. Templars of Liberty of America, Respondent.
    
      Assessment insurance — service of notice of an assessment by mail — burden of proof ■ of payment of an assessment.
    
    "Where the constitution and by-laws of an assessment insurance association make no provision as to.the manner in which notices of assessment shall be given, but it is the uniform custom of the association to send such notices by mail, a notice of assessment served in accordance with such custom upon a member of the association who was familiar therewith and had, as an officer of a subordinate lodge of the association, himself mailed such notices, is valid.
    In an action brought to recover upon the certificate issued to such member, which provided that the association should pay the benefit upon receiving proof “that all the requirements of the Endowment Fund are complied with by the said John Betteuhauser according to the applicant’s petition on file, and that he is clear of all indebtedness to this association at the time of his death,” the complaint alleged “that the said John. Bettenhasser, in his lifetime, did comply with all the requirements of the endowment fund of the defendant according to his petition made to the defendant at the time of his application to become a member and on file with the defendant, and plaintiff alleges, upon information and belief, that the said John Bettenhasser at the time of his death was clear of all indebtedness to the defendant.” This allegation was denied in the answer.
    
      Held,, that the defendant might, under its denial that the member had complied with the terms of the certificate, prove the non-payment by the member of an assessment duly levied against him, of which he had received notice in the customary manner.
    
      Semble, that the plaintiff, in order to recover, was obliged to prove that the member at the time of his death was clear of all indebtedness to the association.
    Appeal by the plaintiff, Gertrude Bettenhasser, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 13th day ■of April, 1898, upon the verdict of a jury, and also from an order ■entered in said clerk’s office on the 15th day of April, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      August P. Wagener, for the appellant.
    
      Pdgwr Whitlooh, for the respondent.
    
      
      
        sic.
      
    
   McLaughlin, J.:

On the 7th of September, 1885, John Bettenhasser became a member of the defendant association — a domestic corporation — and on that-day it issued to him a certificate of which the following is a copy:

“ Certificate of Membership.
“ This certifies that Bro. John Bettenhauser has been duly initiated and is a member in good standing of Olive Temple No. 14 of Brooklyn, State of New York, and in accordance with and under the provisions of the Constitution and By-laws governing this association,' the sum of one assessment for each member, o-f the Endowment Fund, at the time of his death, not to exceed jthe sum of One thousand Dollars ($1,000) shall be paid to his wife Gertrude, nee Simon¿ within forty days after the Grand Recorder sh9.ll have received satisfactory evidence of his death and the surrender of this certificate with the receipt on the back of this certificate filled out and signed by the person or .persons receiving said benéfits, provided that all the requirements of the Endowment Fund are complied with by the said John Bettenhauser,* according to the applicant’s petition on file, and that he is -clear of all indebtedness to this association at the time of his death.
“In Witness Whereof this Certificate of Membership in the Endowment Fund of the Templars of Liberty of America is signed by the Grand Templar and Grand Recorder, this seventh day of September, 1885.
“ GEO. W. PALMER,
Grand Templar.
[l. s.] “O. H. ROI-IDE,
Grand Recorder.”

On the 2-lst of August, 1895, John Bettenhasser died and this action was brought by his widow to recover the $1,000 specified in the certificate of membership. The complaint, among, other things, alleged that the said John Bettenhasser, in his lifetime, did comply with all the requirements of the endowment fund of the defendant according to his petition made tó the defendant at the time of his application to become a member and on file with the defendant, and plaintiff alleges, upon information and belief, that he said John. Bettenhasser at the time of his death, was clear of all indebtedness to the defendant.” This was the only allegation of the complaint denied by the defendant, and upon this issue the parties went to trial, and there the plaintiff, after introducing the certificate of membership, rested.

From the testimony offered on the part of the defendant, which was not controverted by the plaintiff, it appeared that the constitution and by-laws of the defendant association made no provision as to the manner in which notices of assessment should be given, but during the time Bettenhasser was a member, the uniform custom of the defendant was to send such notices by mail; that the grand recorded of defendant sent packages of postal cards to the recorder of each temple, and he, in turn, posted them, properly addressed to each member; that John Bettenhasser was familiar with this cus-r tom; that after he became a member of the defendant, he himself held for a time the office of and acted as financial recorder of a subordinate temple of the defendant, during which time notices of assessment were given by him in this way; that on the 29th of June, 1895, Louis Warmers, as the financial recorder of the subordinate temple of the defendant of which John Bettenhasser was a member, mailed two notices, one directed to John Bettenhasser and the other to his wife, the plaintiff, at their then residence,, in and by which they were notified that two assessments were due and must be paid within thirty days from the date of the notice, or they would be dropped from the roils. It also appeared that in addition to the notice given by mail, Bettenhasser was personally advised by Warmers, both orally and in writing, that unless he paid his assessment he would be dropped. Warmers testified that intermediate the mailing of the notices above referred to and the 7th of August, 1895 — the time when Bettenhasser was dropped -r- Bettenhasser called at his residence and told him he knew that he was indebted to the defendant, and on August 7,1895, Warmers called at Bettenhasser’s residence and told him he had better attend a meeting of the defendant to be held that night, and if he did not, he would be dropped, to which Bettenhasser replied that he would attend, but did not do so ;' that prior to the time the meeting was held, Warmers sent the following letter,"which was delivered to Mm personally: “ To-night is meeting of H. Y. Thompson, 25. . Now, if you do not want tó be dropped from the- roll tó-night, you will please pay the arrears or come personally to the meeting. I had your, time extended several times, but can do it no longer, so if you do not come up and pay all arrears, for you and your wife, I must get you both dropped, which case I do not like to do.” Immediately prior to the meeting, Warmers sent his son to see if Bettenhasser would attend, and -the son testified that his conversation with Bettenhasser- was had in the presence of the latter’s wife, who told him “ to go up and show himself whether he would be dropped or not.” She was present at the trial but did not contradict this testimony in any .way. Bettenhasser did not attend the meeting, and having failed to pay- the assessment within the. time specified, notice of which had been given thirty-nine days before, he was dropped on the Jth of August, 1895, and thereupon ceased to be a member of the association.

At the close of the trial each of the parties moved for judgment, which was denied, the court saying it would submit to the jury one question, viz., the credibility of the defendant’s witnesses, with instructions if they believed that the witnesses told the truth, that then their verdict would be for defendant. The jury rendered, a. verdict of “ NTo cause of action,” and from the judgment entered thereon the plaintiff has appealed.

We think the judgment is right and should be affirmed. The certificate of membership issued to-John Bettenhasser entitled the plaintiff, upon the death of her husband, to receive from the defendant association not to. exceed $1,000, provided that all the requirements of the endowment fund had been complied with by him and he -was not indebted to the association at the time of his death; but by express provision of the certificate she was not entitled to recover anything unless her husband at the time of his death was “ clear of all indebtedness to this association/’ and this fact the plaintiff was just as much bound to prove, before a recovery could he had; as that the certificate was issued. It seems that her attorney recognized the force of this provision of the certificate by appropriate allegations in the complaint. The allegation is. there made that “ John Bettenhasser in' his lifetime did comply with all the. requirements of the endowment fund of the defendant ’■’ and that he. was at the time of his death “ clear of all indebtedness to the defendant.”- But it is- urged by the appellant’s attorney that having «established that John Bettenhasser was admitted to membership in the defendant association, the presumption prevailed, in the absence of proof to the contrary, that he did comply with the terms of the ■certificate, and remained a member in good standing until his death, «and the burden of establishing such facts was upon the' defendant. From what took place upon the trial it seems that the defendant acquiesced in this contention, inasmuch as it assumed the burden of ■proving that Bettenhasserdid not pay his assessment and was dropped, and we are of the opinion that it conclusively established such fact. It certainly produced evidence which justified the jury in so finding.

The constitution and by-laws, it will be remembered, made no provision as to the manner in which notices of assessment should be given, but the uniform custom during the time John Bettenhasser was a member —which custom was well known to him—was to send such notices by mail, and we think, as was held in Merriman v. Keystone Mutual Benefit Association (138 N. Y. 116), it is not an unreasonable rule to hold that such notices, under the facts here presented, could legally be given by mail. In that case the court said: “ There is no provision in the policy that a policyholder may be notified of an assessment by mail; but it is a reasonable rule to apply to the situation that such notice may be given by mail. If the service of the'notice be questioned, in any case, it would be sufficient for the company to show that it had mailed the notice, and in the absence of countervailing proof, it would be presumed that the notice reached the policyholder to whom it was addressed.”

Here there was some evidence that the notice was actually received, because after it was sent Bettenhasser admitted to Warmers that he knew he was indebted to the association. Not only this, but Warmers told him he must personally attend the meeting or he would be dropped for non-payment of dues, and also wrote him, and the letter was personally delivered to him, urging him to attend the meeting, and stating that if he did not pay up his dues, he would be dropped.

There was an abundance of evidence to establish the fact that Bettenhasser had notice of the assessment, and no pretense or claim is made that he ever paid it.

Finally, it is urged that the court erred in allowing the defendant to prove the non-payment of the assessments, inasmuch as such fact was not pleaded in the answer. The plaintiff alleged full performance by John Bettenhasser of the terms and conditions of the certificate of. membership, which entitled her to the amount sought to be recovered. The defendant denied performance, and under its-denial it could show every fact which would establish non-performance by Bettenhasser. tinder a general denial' a defendant is entitled to offer evidence of any facts which will tend to .controvert what the plaintiff is bound, in the first instance to prove, in order to establish his cause of action. (Griffin v. Long Island R. R. Co., 101 N. Y. 348 ; Milbank v. Jones, 141 id. 340.)

The judgment and order appealed from must be affirmed, with costs.

Van Brunt, P. J., Rumsey, Ingraham and Hatch, JJ., concurred.

Judgment and order affirmed, with costs. 
      
      
        Sic.
      
     