
    Mary B. Rewitzer, Respondent, v. Switchmen’s Union of North America, Appellant.
    Fourth Department,
    May 2, 1906.
    Fraternal insurance society—rules as to time of payment of dues con- - strued—when member has a month in which to pay — waiver of forfeiture of policy.
    When the rules and regulations -of a fraternal insurance society provide that dues mtist.be paid in advance at the end of each month for the succeeding month, but that a member suspended for non-payment may be reinstated by'furnishing'a certificate of good health after one month, said rule will be' construed to mean that a member who, being in default at the beginning of a month, pays his dues before the end of said month, is not required to furnish a certificate of good health as a prerequisite to reinstatement.
    Moreover, the custom of the "treasurers of local lodges not to remit, the dues Cpb leeted to the grand lodge until the end of the month following the date they became due favors the above Construction and may be considered on" the question of construction,.
    When the rules provide that if a member not in arrears should sustain injury or become sick he cannot become delinquent'while injured or be deprived of hjs monthly benefit, but. that -his dues and assessments must be deducted from suph .benefits, the beneficiary of a member yho was sick when .the asséssment became due, but whose dues were paid-within the current month thereafter, may recover if the member dies within the month.
    Moreover, the act of the association, in accepting and retaining, dues within the current month after they became payable constitutes "a- waiver Of any forfeiture of the policy. ' ,
    
    
      Appeal by the defendant, the Switchmen’s Union of _ North America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on ' the 16th day of September, 1905,. upon the report of a referee.
    The action is brought to recover upon a certificate of life insurance issued by the defendant, a fraternal insurance society, to one George L. Bewitzer, who has died, in which his mother is named as beneficiary.
    
      V. H. Hiordan and John J. Hynes, for the appellant.
    
      Daniel V. Murvhy, for the respondent.
   Kruse, J.:

The defendant is a. domestic fraternal insurance society organized under article 7 of chapter 690 of the Laws of 1892 of this State" relating to fraternal beneficiary societies. It consists of a grand lodge and subordinate lodges organized by it.

On or about October 14, 1903, the defendant organized a subordinate lodge in the city of Springfield, O., known as subdivision lodge 215, and George L. Bewitzer became a member thereof, and a certificate of membership was issued to him naming his mother, the plaintiff, as beneficiary. Class B, to which the insured belonged, insured‘the member for $1,200. The insurance was made subject to certain Conditions therein named, and the laws,' rules and regulations were made part of the contract of insurance. The insured paid his dues and assessments in advance for each of the first three months, as required by the rules, but those for the fourth, month, February, he did not pay until February sixteenth, when Ije paid the dues and assessments for that month' and also for March and April.- The dues and assessments for May were payable April thirtieth, but at that time he was sick, and this illness terminated fatally ón May 21, 1904. His dues for May and Juñe were paid by his brother on May 10, 1904, accepted by the proper officer of the local lodge and transmitted by him to the proper officer of the grand lodge at the end of the month as usual.- The practice was for the local officer to retain the'moneys so collected by him during the month, making his remittance on the morning of the last day of the month. The moneys so paid by the brother for the insur■anee on May fifteenth, and remitted to the grand lodge on the last of the month, were retained until June, tenth following, when they ' were returned by the grand lodge to the local treasurer, who tendered them back to the brother who had paid them. The rules of the defendant provide as follows :

“Sec. 213. Dues and assessments of all"members''for thé following.month must be paid monthly in advance to the Treasurer on or •before the last day of each month. .

“ Sec.- 214. Any member failing or declining to make payment of his dues and assessments as herein provided, stands suspended, such suspension taking effect on the first; day of the current, month.”

“ Sec. 250. A member under suspension shall forfeit all rights and privileges of membership, including the traveling card, .password and seat in the lodge room.” .

But these, rules must be read in connection with the following:

“Sec. 240; A member of the Union who has been suspended for non-payment of an assessment or dues for one month, wishing to be reinstated,, must pay all ¡arrearages in advance,, make written application to, at a stated or special meeting of, the Lodge from which he was suspended,, upon' a blank issued by .the' Grand.Lodge.

••‘■Sec." 241. An applicant for reinstatement shall furnish .a certificate of health after one month, and after two months shall, at. his own expense, furnish the Union with a medical certificate, on the form prescribed for applicants for original membership^ from' a medical examiner of the Union, or a qualified physician authorized by the Grand Secretary and Treasurer,' as to his health and fitness for membership, which certificate must be approved by the Grand Medical Examiner and Grand Secretary and Treasurer, the same as upon original membership.”

'“ Sec. 247. A member suspended for non-payment of dues and assessments shall stand suspended for the month, he is suspended, and shall not be entitled to ¡admission to the Lodge until all dues and assessments shall have been paid for that month.” •

And rule 116 forbids the payment of any claim “ unless the dues and assessments of the member to whom the certificate.' was issued, were páid to the subordinate Lodge Treasurer at the time his death or total disability occurred.”

It is contended by the defendant that the insured became, suspended by omitting to pay his dues and assessments for May on the last day of April, and his insurance was forfeited thereby, and that he could not avoid the effect thereof without being reinstated under sections 240 and 241 and those following relating to a vote in the local lodge and approval of the medical examiner. We think this view is unfounded.

1. It will be observed that section 240 provides for reinstatement of a member who has been suspended for non-payment of an assessment or dues for one month, and section 241 requires the furnishing of the certificate of health after one month.

The reasonable construction of these sections as a whole is, that if a member pays his dues and assessments past due within one month after they become payable, he regains his good standing without being reinstated, as is provided by section 240, etc., but in no event, is the insurance to be paid if the dues and assessments were riot paid to the subordinate lodge at the time of his death. That it is only where the default has continued for a month that the application for reinstatement is required to be made to regain his former standing and save his membership and insurance. I think this is obvious from these rules when read together, supplemented by the conduct of the officers of the grand lodge and those of the local or subordinate lodge. At the end of each month the report of the local lodge, officer to the grand lodge showed that members were delinquent for the month, none was ever suspended but the dues and assessments were uniformly afterwards accepted. Indeed, that was done with the insured as regards the dues and assessments for February. This course of conduct by the defendant is a circumstance and may properly be considered upon the construction to be put upon these rules if there be any ambiguity in tlieir meaning. Another circumstance which I think sustains this view is the fact that the local officer did not transmit these moneys until the end of the month, not at the close of the day, but in the morning, so that the inference is permissible that the dues and assessments for that month were not expected to be transmitted to the grand lodge until the end of the month, although the members were required to pay them the last of the preceeding month.

2. Again, this case seems to. come exactly within section 302 of the rules, which provides : “ If a brother not in arrears should sustain an injury or become sick, he cannot become delinquent while injured or be" deprived • of his weekly benefits, but his dues and assessments must be" deducted from such benefits.”

■ The proof shows that the assured became ill April twenty-fourth, and was- ill when his dues and assessments became due,, and never recovered from his illness. The rule expressly provides thafi the, sick or disabled member cannot under such circumstances become delinquent, and makes provision for the payment of his dues and assessments out of the wjeekly sick benefit-. I think it cannot be said that the dues and assessments here referred to ftre only the special assessments made, by the local or subordinate Iodgejas is claimed by the defendant. If there is any such restriction in the rules or by-laws of the defendant it has not been disclosed by the record.

3. We are also inclined to agree with the learned referee that if there was such.a default in payment of dues and assessments as is claimed by the defendants accepting and retaining the dues and assessments, as. was. done, constituted a. waiver of strict performance upon the part of the assured, and that the defendant cannot now insist upon its right to forfeit this insurance. ' -

The judgment should be. affirmed, with costs..

All concurred

Judgment affirmed, ¡with costs.  