
    John M. Mayer, Resp’t, v. The Equitable Reserve Fund Life Association, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 3, 1888.)
    
    1. Insurance (life)—Mutual benefit association—Construction of contract.
    The certificate of membership issued by the defendant (an association organized under Laws 1883, chap 175, for the purpose of transacting the business of life insurance upon the assessment plan) to one Stephan, constituting the contract for insurance, which is sued upon, provided that “in consideration of the representations, warranties and agreements made to and with this association in the application for this certificate of membership, etc., the defendant agreed within ninety days after the receipt of due notice and satisfactory proofs of the death * * * there shall be payable to the * * * legal representatives of said member the sum of Í>5,000," etc. The certificate recites that it is “ subject to all the provisions contained in the constitution and by-laws of the association,” and also that it is “issued and accepted subject to the express conditions that ■* * * if any of the statements, answers, declarations or representations made in or accompanying the application for this certificate * * * are in any respect untrue * * * this certificate shall * * * be null and void.” The application contained numerous questions, and recited that the applicant should answer “fully and truly,” also that “ it is hereby declared and warranted that the foregoing answers and statements are full, complete and true.” The eighth question in said application is in regard to the father, mother and brother, and was, “ state so far as you know what the age at death, cause of death, duration of final illness, and state of the previous health of each of the following peréons if deceased? What is the age and present state of health of each of them if now living. ” Following this question, among others are, ninth, “are you now in good health, and is your health usually good.” Tenth, “ have you ever had any serious illness, local disease or personal injury? If yes, state nature, date and duration and severity of attack.” Fourteenth, “ name and residence of your usual medical attendant.” Held, that the qualification in the eighth question, “ so far as you know,” was not implied nor understood in each of the other questions.
    3. Same—Assignment—When sufficient.
    Laws 1883, chap. 175, § 18, gives the defendant power to make by-laws for the conduct of its officers. The assignment to the plaintiff of the certificate issued to Stephan complied with all the specified requirements of the by-laws, except it did not give the name of the beneficiaries to be superseded. It was delivered to the secretary of the defendant and its receipt acknowledged. No objection was taken to the form, contents or omissions of the assignment. The defendant spoke of it in acknowledging it as “ substituting your name as beneficiary.” Held, that the assignment had been duly examined, filed, approved, and the proper entry'made, and the change in the beneficiary effected.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of the jury upon the trial at the Ulster county circuit. Also, from the order denying the motion made' by the defendant upon the minutes-to set aside the verdict and grant a new trial.
    The action was brought by the plaintiff to recover, as: assignee, upon a certificate of membership issued by the defendant to Charles Stephan. This certificate was a contract of insurance upon the life of Stephan for $5,000, subject to certain terms and conditions.
    The defendant answered and alleged a breach of the warranties upon which the certificate was issued, fraud collusion and misrepresentation in its procurement; no title in the plaintiff.
    The certificate of membership constituting the contract for insurance provided that: “ In consideration of the representations, warranties and agreements made to and with this association, in the application for this certificate of membership,” and the payment, etc., the defendant receives Charles Stephan “into its membership,” and agrees “that within ninety days after the receipt of due notice, and satisfactory proofs of the death of the above named member, during the continuance of the certificate of membership, there shall be payable to the heirs or legal representatives of said member the sum of $5,000, from the death fund,” etc. The certificate recites that it is “subject to all the provisions contained in the constitution and by-laws of the association,” and also that it is “issued and accepted subject to the express conditions that * * * if any of the statements, answers, declarations or representations made in or accompanying the application for this certificate, which application is hereby referred to and made a part hereof, are in any respect untrue, then in each and every such case this certificate shall cease and determine, and be null and void.”
    The application Was signed by Charles Stephan. It contained numerous questions and recited that the applicant should answer “fully and truly with representations upon which, as part consideration, the certificate, if issued, will-be based.”
    The application contained this declaration: “ It is hereby declared and warranted that the foregoing answers and statements are full, complete and true, and it is agreed that this declaration and warranty shall form the basis and shall be a part of the contract between the undersigned and the Equitable Reserve Fund Life Association, and are offered to said association as a consideration of the contract applied for,” etc.
    Accompanying the application is the medical examiner’s report, containing a list of printed questions to _ which the applicant made answers, and signed a declaration similar to the above.
    The defendant is an association organized under chapter 175, Laws of 1883, for the purpose of transacting the business of life insurance upon the “assessment plan.”
    Further facts appear in the opinion.
    
      Samuel Fleischman, for app’lt; E. S. Wood, for resp’t.
   Landon, J.

The application for the certificate was made by Charles Stephan, October 10, 1883, and he died December 27, 1883. Upon the trial much testimony was given on the part of the defendant tending to show that several of the answers made by the insured, in his application and upon his medical examination, were not “fully and truly” answered. According to the terms of the contract these answers were warranties, and if not fully and truly made, the contract was, by its own terms, void. Such was the agreement of the parties to it, an agreement which it is hardly necessary to say it was entirely competent for the parties to make, and which the court cannot unmake, but must accept as made, and enforce. Foot v. Ætna Life Ins. Co., 61 N. Y., 571; Cushman v. U. S. Life Ins. Co., 63 id., 404: Baker v. Home Life Ins. Co., 64 id., 648; Edington v. Ætna Life Ins. Co., 77 id., 564; S. C., 100 id., 536; Bryce v. Lorrillard Fire Ins. Co., 55 id., 240; Dwight v. Germania Life Ins. Co., 103 id., 341; 3 N. Y. State Rep., 115.

In the application made' by the insured there was one question, the eighth, which required an answer, respecting the age, health, etc., of the father, mother, brothers and sisters and grand parents of the insured. The question was, “state as far as you know,” what was the age at death, cause of death, duration of final illness, and state of the previous health of each of the following persons, if deceased ?

What is the age and present state of health of each of them, if now living ?” Following this question were these among others:

Ninth. “ Are you now in good health, and is your health usually good ? ” The answer was, “ Yes.”

Tenth. “ Have you ever had any serious illness, local disease, or personal injury ? If yes, state nature, date and duration and severity of attack ? The answer was “ Ho.”

Fourteenth. “Name and residence of your usual medical attendant % ” The answer was, “ Hone.”

The testimony oil the part of the defense tended to show that the answers given were false. The court charged the jury that the qualification in the eighth question, “so far as 5 on know,” was implied and understood in each of the other questions. The court said, referring to the latter questions and the answers to them: “If he (the insured) does answer according to the judgment of the jury, fairly and honestly, then he has performed his warranty.”

We think the learned judge fell into an error. The qualifying words in the eighth question are manifestly inserted because the insured is called upon to speak with respect to the health, etc., of others. He was supposed to have some, 'but possibly he had only small knowledge of the matters inquired of. Respecting himself and his own health and medical attendant, he was presumed to know. If the charge of the court in this respect is sustained, then the insured, whose warranty required him to answer “fully and truly,” might with entire safety have answered falsely and partly, if the jury should think they could excuse him upon the ground that he answered “ fairly and honestly.” It is not difficult to see that such a definition of the terms of the contract, opened the way for the jury to hold the defendant liable, although every answer of the insured might have been false and known by him to be so. It substituted for the fact itself, an inquiry into the dead man’s belief respecting the fact. It is enough to say that the defendant had entered into no contract requiring it to abide such a hazard.-

The defendant urges that the plaintiff has no title to the ■certificate or to the claim against the defendant, if any valid claim exists. The eighteenth section of the act under which the defendant was organized (chap. 175, Laws 1883), gives a member the right, with the consent of the association, to make a change in his beneficiary.

The act gives the association power to make by-laws for the conduct of its affairs. § 4. The defendant’s by-laws provided that the member desiring to change his beneficiary should execute a certificate before a notary public, or other proper officer, “in such form as the executive committee .shall prescribe or appoint,” stating his name in full, number -of certificate, name and place of residence of the beneficiary whom he desires to substitute, name or names of those whom he desires to supersede, and file it with the secretary of the association, who shall upon its receipt immediately examine it, and if in due form, duly executed and acknowledged, he shall make the proper entries to show that the change has been made. “No change of beneficiary shall be effectual unless the certificate thereof shall have been filed, examined and found correct, and the necessary change made in the records of the association before the receipt of notice of the death of such member.”

Here Charles Stephan, the insured, executed and acknowledged an assignment before a notary public on the 25th day •of October, 3 883, and delivered it to the plaintiff. The assignment complied with all the specified requirements of the "by-laws, except it did not give the names of the beneficiaries to be superseded. It was delivered to the secretary of the ■defendant on or previous to November 19, 1883.

On that day the secretary wrote to the plaintiff that the association has to inform you that it duly received a certificate made by Charles Stephan, substituting your name as the beneficiary of his certificate of membership in this association, said certificate is numbered 244.”

No objection was taken to the form, contents or omissions ■of the assignment. The defendant spoke of it as “ substituting your name as beneficiary,” and we think that declaration is evidence against the defendant sufficient to support a verdict that the assignment had been duly examined, filed, approved and the proper entry made, and the change in beneficiary effected.

There is no evidence that these acts were not done by the association.

Our examination leads to the conclusion that the law does not defeat the plaintiff’s right of recovery upon the ground of defects in his paper title, but makes it dependent upon "the issues of fact.

As there must be a new trial for the reasons first assigned, we do not deem it needful to examine the other grounds of ■error alleged, since, upon a new trial, they may not arise.

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

Learned, P. J., concurs; Ingalls, J., not sitting.  