
    Fannie M. Ingram, App’lt, v. Supreme Council American Legion of Honor, Resp’t.
    
      (Supreme Court, General Term, Second, Department,
    
    
      Filed February 13, 1888.)
    
    1. Insurance -Life policy—Failure to pay premiums when due—Effect of—Sickness no excuse.
    The non-payment of the premium secured to be paid by a life policy on the day on which it falls due, will avoid the policy if by the terms of the policy it is so agreed. Neither sudden illness nor insanity will excuse performance of the exact requirements of the contract.
    2. Benefit— Societies —Bights of members—Be-instatement.
    The constitution of the defendant provided for the re-instatement of a member who had been suspended, on his making^ a written application and on his paying arrears of dues, etc., on a majority ballot at any regular stated meeting. No formal paper was demanded, requesting re-in-statement and no note was taken. The supreme secretary wrote that the deceased could not be re-instated without a medical examination and he was thereupon dropped from the membership. Held, that the ruling of the supreme secretary was not in accordance with the laws of the association. That the deceased had been deprived of a right to a ballot and to re-instatement without good reason.
    
      The appeal here is from a judgment, dismissing the plaintiff’s complaint. The action was brought to recover $5,000 the amount insured on the life of Jesse D. Ingram, by a certificate, issued by the defendant to him May 2, 1881. Fannie M. Ingram, the plaintiff, was the beneficiary named in the certificate, and the wife of Jesse D. Ingram. The death of the insured occurred January 10 1886. This action was brought April 7, 1887. No answer was put in, but the defendant joined with the plaintiff in agreeing on the facts of the case. The defendant is a secret association, mutual in its character, with all the attributes of a life insurance company. Its insurance is confined solely to members of the order. Membership therein can only be obtained by application, election, and initiation, in accordance with its secret work. It requires a medical examination of applicants for beneficial membership, makes the application ana answers to the queries presented, warranties, and agrees to pay on the death of the member to the beneciary named, the proceeds of an assessment on the surviving members of that class, not, however, exceeding -the amount named in the certificate issued to him. The different amounts are designated by degrees. The largest sum agreed to be paid is $5,000 and the members to whom certificates of that amount are issued are called sixth degree members. In place of premiums, payable annually or otherwise. the member is required to pay assessments for deaths occurring in his class, at a rate fixed in the constitution and laws of the order graded by his age. Jesse D. Ingram was admitted a sixth degree beneficial member of this order in April, 1881. On his admission the defendant -issued, to him a certificate in which it agreed to pay Fannie M. Ingram, the appellant, the amount of an assessment upon the surviving members of his class, not exceeding the sum of $5,000 on-his death. He died January 10, 1886. It is an admitted fact that the defendant had, and has sufficient funds with which to pay the full amount named in the certificate. Unless something appears depriving her of that right, the plaintiff is entitled to recover that amount with interest from the time it should have been paid. It is the contention of the defendant, that something does appear which bars her right. The condition of the certificate is that he shall be a member in good standing at the time of his death. It is claimed he was not in good standing because he had made default in paying an assessment falling due Septem24, 1885. Default was made in paying that assessment, which occurred in this wise:
    The assessment was called by the supreme authorities of the defendant’s order August 15, 1885; it was payable within forty days from that date, and that limitation expired September 24, 1885. The agreement to pay assessments was the personal obligation of the member. September fifteenth, nine days before the forty days expired, Ingram became hopelessly insane and so continued until January 10, 1886, when he died. He disappeared from his home September fifteenth, and was not found until September twenty-ninth, and then was discovered in a distant part of the state. The plaintiff, until he was brought back, was in ignorance of the assessment. From April, 1881, to this time he had paid all assessments. His failure at this time arose solely from his insanity. On September thirtieth, when the plaintiff first learned of this assessment, she tendered its amount to the collector of the council, and was called upon for one dollar additional for the quarterly installment of dues, payable October first. She paid the assessment, $2.50, and the dues, one dollar, October first, and they were received by the collector under protest. The first regular meeting of the council to which Ingram belonged, after the default, was held October fifth. Thirty-days had not then elapsed from the default and the council" had the assessment and dues then in its possession. Under the constitution and laws of the defendant, as they existed when Ingram became a member, the payment of the assessment on or before the time of the next regular meeting of the council cured the default. Neither he or the plaintiff had notice or knowledge of any change. Under the constitution and laws as they were at the time of this default, the council might require a medical examination, but, unless ordered by the council, none was required. No examination was ordered. He was entitled to a ballot on the question of his re-instatement, and a majority ballot in his favor would re-instate him. No ballot was ever ordered or taken. No form of application for re-instatement is specified, but it is conceded that the plaintiff paid the assessment and dues October first, in good faith,for the purpose of re-instating her husband. When she made that payment she was not advised that anything more was needed to secure his re-instatement. The failure to give Ingram the benefit of that part of the contract did not arise from any omission on his part, or on that of the plaintiff. November 2, 1885, the deputy grand comman- . der, after investigation, decided that Ingram was a member in good standing. The notice of the assessment, in paying which default was made, contained no statement of the place where it was payable, or that if not paid within the time limited the rights of the member in the benefit fund would be forfeited. The trial court held the plaintiff could not maintain the action and dismissed the complaint.
    
      The action was not purely one of law to recover the amount named in the certificate, but invoked the equity power of the court to excuse the forfeiture and to re-instate Ingram as a member of his council.
    
      Lewis E. Carr, for app’lt; J. Frank Fort, for resp’t.
   Barnard, P. J.

The plaintiff’s husband became a member of defendant’s association on the 2d of March, 1881, and obtained its certificate that he was a sixth degree contributor to the benefit fund of the order. The company, in consideration of the performance by the husband of the rules of the order, agreed to pay the plaintiff, who was his wife, the sum of $5,000 after his death. The husband regularly paid all dues, fines and assessments until September 24, 1884. The case shows that an assessment, No. J4, was called for on the 15th of August, 1885, and by the laws of the order, payment was called for within forty days from that date. On the 15th of September, 1885, the husband became insane and wandered from home, and was found at Corning, N. Y., on the 29th of September, 1885, and he never recovered his reason, and he died in July, 1886. After his return the wife first became informed of the existence of the assessment Í4, and at once, in October, 1885, paid to the local office of the defendant the assessment. This officer received the money “on protest.” The main company is located in Massachusetts, and local sub-councils exist in various places when organized, one being at Port Jervis, where the deceased and his wife lived.

The question is, whether this policy or certificate is good in the hands of the plaintiff. The evidence shows by the rules of the defendant “any member faffing to pay such assessment within forty days shall stand suspended from the order and all benefits therefrom.” It is well settled law that non-payment of the premium secured to be paid by the fife policy on the day on which it falls due will void the policy if by the terms of the policy it is so agreed. Attorney-General, etc., v. N. A. Life Ins. Co., 82 N. Y., 190; People v. Knickerbocker Life Ins. Co., 103 id., 480.

Neither sudden illness or insanity will excuse the performance of the exact requirements of the contract. Is forfeiture absolute ? If it is, there is no remedy. The determination of this question requires a statement of the position of the parties under the rules of the association. The defendant is a Massachusetts corporation, located at Boston. It is a part of its policy to have local councils when a sufficient number of persons are willing to conform to the subordinate constitution prepared by the home society.

This governing body at home is termed the Supreme Council, and all its officers are prefixed with the same word, as supreme commander, supreme secretary, supreme treasurer and the_ like. A group of local councils may have a grand council, and all its officers are called grand. The powers of the supreme commander are very large. He can decide law questions which bind the defendant unless the supreme council annul the decision in its next meeting. The powers of_ the grand commander aré not very clearly defined but it is a fair infenence that within the scope of the powers entrusted to grand councils he is equally powerful in the district which is empraced by the grand commandery. This grand council is expressly authorized to enact laws for its own government. The sub-constitution provided that no member shall forfeit his certificate nor lose his right unless suspended in accordance with law. Article 7, section 2, and in the next section provided as follows:

Section 3. _ Members of this council who have been suspended, desiring to be re-instated, must make to this council in writing, application for re-instatement, such application to be accompanied with the full amount of arrears for dues, fines, and all assessments on or before the date of suspension * * * and this application shall be filed with the secretary of the council at such time as will enable the members to ballot thereon at any regular stated meeting thereafter held before the expiration of thirty days herein provided must be re-examined. * * * Upon all applications for reinstatement, a ballot shall be ordered by the commander, and if a majority of the ballots cast is favorable the applicant shall be declared reinstated.

The forty days expired on the 24th of September, 1885. The plaintiff had then paid- the assessment No. 75, but the collector had received it under protest. No formal paper was demanded requiring reinstatement, and no vote was then taken. The district council wrote to the supreme council, at Boston, about the case, and adjourned to the 19th of October, 1885.

The supreme secretary then wrote that the Port Jervis branch could not reinstate him without a medical examination, and on this letter the name of the suspended member was dropped. This decision of the supreme secretary was not in accordance with the laws of his society. The deceased has been, therefore, deprived of a right to a ballot and to reinstatemant without good reason. Under this state of the case, and on the 2d of November following, the grand commander sent his deputy to examine into, investigate, and decide this case.

The deputy decided that the deceased was a member in good standing by paying up all arrearages. Upon the decisión the plaintiff, on the 4th of November, 1885, paid up all arrearages,including assessments made after number 74. The district council applied to the grand commander, and he decided that he had sent the deputy, in ignorance that a decision had been made by the supreme council through its secretary, and that this supreme council had exclusive .jurisdiction of all cases involving the benefit fund. This decision is also not sustained by examination.

The supreme council decided nothing. The secretary who wrote what the law was had no power of decision, and his statement of the law was unwarranted. The benefit fund is the fund out of which death claims are paid, and while the reinstatement of a member may result in a claim against the association, and which must be paid out of the fund, it cannot be said that a reinstatement of a member involves the benefit fund. The plaintiff had the right to a ballot, and to reinstatement if the ballot was favorable. The ballot would have been favorable without doubt. It was just that it should be, and they voted that they had done all they could to get the plaintiff’s benefit, and concluded by “hoping for her to get it in some other way.” “They were prevented by a wrong construction of the law, and the reinstatement by the deputy grand commander was just and fully within his powers. His order was not reversed, but only an invalid reason was given for sending him.

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

Pratt and Dykman, JJ., concur.  