
    Henry J. Sweeney, Respondent, v. Modern Woodmen of America, Appellant.
    
      Benefit associations — insurance — action to recover on certificate of life insurance — defense that insured had violated contract by intemperate use of intoxicants.
    
    
      Sweeney v. Modern Woodmen of America, 206 App. Div. 730, reversed.
    (Argued December 4, 1923;
    decided December 27, 1923.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 14, 1923, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was to recover upon a certificate of life insurance. The answer set up as a defense that the insured by intemperate use of intoxicants had violated conditions of the contract whereby it became null and void.
    
      
      Joseph T. Wilson, Truman Plantz and George H. Davis for appellant.
    
      Frank J. Fitzpatrick and Thomas J. Campbell for respondent.
   Per Curiam.

The evidence is uncontradicted and unimpeached (Hull v. Littauer, 162 N. Y. 569) that the member holding the defendant’s certificate became “ intemperate in the use of alcoholic drinks.”

The effect of such intemperance was, by the terms of the contract, a forfeiture of the certificate and of all benefits thereunder.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Judgment reversed, etc.  