
    Ellen Demings, Resp’t, v. The Supreme Lodge Knights of Pythias of the World, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 22, 1892.)
    
    Benefit societies—Authority for making assessment—Evidence.
    By the rules of defendant, if after the payment of a life benefit there was not enough in the fund of that class to pay the next benefit, the supreme secretary was authorized to notify the secretary of each section to assess each member $1.10, payable within thirty days. On the trial of an action upon a benefit certificate, which defendant refused to pay on the ground of non-payment of assessments, defendant’s counsel .offered to prove the receipt by the section secretary of such notices from the supreme secretary, and that the former notified the insured, who failed to pay within the prescribed time and was suspended. This evidence was rejected on the ground that it was not shown that the assessment was regularly made. Held., error; the notice from the supreme secretary was presumptive proof that there was not a sufficient sum in the fund to pay another benefit and that an assessment was necessary.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff entered on ver: diet of jury at circuit.
    
      Charles B. Wheeler, for app’lt; Samuel M. Welch, Jr., for resp’t.
    
      
       Reversing 38 St. Rep., 379.
    
   O’Brien, J.

The defendant is incorporated in the District of Columbia, and one of the objects of its incorporation, among other things, is the mutual insurance of the lives of its members. On or about the 5th day of May, 1881, the proper officers of the defendant delivered to one George Demings a certificate in writing under the corporate seal of defendant, in which it is stated “ that brother G-eorge Derriings has received the endowment rank of the order of Knights of Pythias in section No. 491, and is a member in good standing in said rank. And in consideration of the representations and declarations made in his application, bearing date April 4, 1881, which application is made a part of this contract, and the payment of the prescribed admission fee; and in consideration of the payment hereafter to said endowment rank of all assessments required, and the full compliance with .all the laws governing this rank, now in force, or that may hereafter be enacted, and shall be in good standing under said laws, the sum of one thousand dollars will be paid by the Supreme Lodge Knights of Pythias of the World, to Ellen Demings, as directed by said brother in his application, or to such other person or persons as he may subsequently direct by will or otherwise and entered upon the records of the supreme master of exchequer, upon due notice and proof of death and good standing in the rank at the time of death, and the surrender of this certificate, provided, however, that if at the time of death of said brother there shall be less than on.e thousand members in this class there shall be only paid a sum equal to one dollar for each member in good standing in this class. And it is understood and agreed that any violation of the within mentioned conditions or the requirements of the laws governing this rank shall render this certificate and all claims null and void, and that the said Supreme Lodge shall not be liable for the above sum or any part thereof.”

The insured member died on the 5th of February, 1885, and the plaintiff, who is the beneficiary named in the certificate, brought this action to recover the sum stipulated to be paid in the certificate in case of death. One of the regulations or by-laws of the corporation which became a part of the contract provided that upon receiving notice of an assessment, each member shall at once pay the amount to the secretary of the section to which he belongs. If any neglect, for thirty days after notice, to pay said assessment, he shall stand suspended from that class of the endowment rank for which said assessment was made, and shall forfeit all claims upon the endowment, fund belonging to that class, and the fact of such suspension shall be reported to the supreme secretary upon the remittance blank, provided that any member thus suspended shall have the privilege of regaining his right irx said class within three months by passing a new medical examination, and paying all assessments that may have accrued up to the time of reinstatement.” It was alleged in the answer that on or about November 22, 1884, an assessment was duly made in pursuance of the laws, covering said endowment rank upon each' member thereof and upon said George Lemings among others, and that on the same day due and proper notice of such assessment was given to and received by said George Lemings pursuant to said by-laws together with a notice that a failure to pay said assessment by Lecember, 1884, would forfeit membership and all claims upon the endowment fund - belonging to said ■ class. That notwithstanding said ass essment and notice thereof, the said George Lemings neglected and refused to pay said assessment at all, and for failure to pay the assessment as required, after thirty days he was duly suspended from said class of the endowment rank, and forfeited all claims upon the endowment fund belonging to said class as provided in and by said contract and by-laws.

On the trial the defendant’s counsel offered to prove by the secretary of the section that he received from the - supreme secretary of the supreme lodge notices of assessments for mailing, that he duly notified George Lemings of the levying of the assessments 66 and 67 and that' Lemings received the notices of assessment and failed during thirty days thereafter to pay the same. That upon being called upon afterwards by the secretary personally and requested to pay he notified the secretary that he intended to pay no more assessments, and stated to the secretary that the lodge should suspend, and accordingly after the expiration of ■ thirty days the fact was reported to branch 491, and he was declared suspended for non-payment of his dues, and that fact was reported by the secretary to the supreme lodge, and that he has never since paid any of his dues or assessments. These were the assessments referred to in the answer. The plaintiff’s counsel objected to this evidence upon the ground that the defendant had not yet shown that any such assessment was regularly made according to the laws of the order. The court sustained the objection, excluded the proof upon the ground stated, and the defendant's counsel excepted.

According to the laws of the corporation assessments originate in the following manner: “If after paying a benefit there remain in the fund belonging to the class of which the deceased was a member a less sum than is sufficient to pay a benefit to that class, the supreme secretary shall immediately notify the secretary of each section to collect and forward to him an assessment of one dollar and ten cents from each member of said class; which must be paid within thirty days.” Therefore, whenever after the payment of a benefit the fund becomes depleted so that' there is not enough to pay another benefit the corporate by-laws, which were made part of the contract in question, provided for an assessment Neither the amount nor the time of payment was uncertain or subject to the discretion of the secretary. The only fact that he had to determine was whether there was on hand in the proper fund sufficient to pay another benefit, and if there was not, it then became his duty to send the notices of the assessment to the secretary of each section for service upon the members. The notice from, the supreme secretary, whose duty it was to ascertain whether there was sufficient in the fund to pay another benefit, was presumptive proof that there was not and that the assessment was necessary. Acts done by a corporation which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter. Bank of the U. S. v. Dandridge, 12 Wheat., 79; Pringle v. Woolworth, 90 N. Y., 510.

We are, therefore, of the opinion that the learned trial judge erroneously excluded the evidence offered to show that the deceased refused to pay the assessment when notified.

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

All concur. • .  