
    ALLISON v. STEVENSON.
    (Supreme Court, Appellate Division, Second Department.
    May 8, 1900.)
    Beneficial Associations—Ben eficiary—Designation—By-Laws—Waiver.
    Under by-laws of a beneficial association, providing that a member might designate to whom payment of death benefit shall be made, by a will or writing signed and acknowledged, and filed with the treasurer of the association, where the treasurer received and filed a will designating the beneficiary, but not acknowledged, the association waived its right to insist on acknowledgment, and the person named in such will was entitled to the benefit.
    Appeal from special term, Kings county.
    Action by William Allison, by Belle Allison, his guardian ad litem, against Jeanie Stevenson. From a judgment in favor" of plaintiff, defendant appeals.
    Reversed.
    Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JERKS, JJ.
    John E. Walker (Frank Rudd, on the brief), for appellant.
    James A. Donegan, for respondent.
   GOODRICH, P. J.

Robert Allison, at the time of his death, was a ■ policeman and a member of the Brooklyn Police Mutual Aid Association. When he joined the association, in 188G, it had a by-law which provided that the application for membership should be made on the printed forms of the association, and that such application “shall include the name or names of the persons for whom the benefit is intended.” The original application had been lost, but proof of its contents was furnished at the trial. In the application, Allison designated his son William Allison, the plaintiff, as his beneficiary. Subsequently, Allison seems to have deserted Ms wife. In 1898 he went to live with his sister Mrs. Jeanie Stevenson, the defendant, and at her house died of dropsy, in March, 1899. The by-laws of the association provide that “any member may, however, designate to whom such payment shall be made by a will or writing signed and acknowledged by such member, and filed with the treasurer of the association.” A paper was offered in evidence designating Mrs. Stevenson as beneficiary. It is dated February 14, 1899, purports to have been signed by Robert Allison, and to have been executed in the presence of two subscribing witnesses, but not to have been acknowledged before an officer authorized to take acknowledgments. It was filed with the treasurer of the association on the day of its date, and has been in his possession and custody since that time. There was evidence by both the subscribing witnesses that the signature was made by Robert in their presence, and also evidence from Mrs. Allison, her son William, and Miss Devoy that the signature was not that of Robert. The court found, as matter of fact, that Robert Allison, the deceased, in accordance with the constitution and by-laws of the association, designated his son William, as beneficiary, “and that s.aid designation was never revoked,” and, as conclusion of law, that the original certificate “has never been assigned, revoked, or canceled.” The specific ground for this finding of fact is not stated,— whether it was that in the opinion of the court the paper designating the defendant as beneficiary was not in fact executed by the deceased, or that it was not properly acknowledged as required by the constitution and by-laws.

After the two subscribing witnesses had testified positively that Allison requested them to sign the paper as subscribing witnesses, as he wished to give the fund to his sister, the defendant, Mrs. Allison was called as a witness by the plaintiff, and testified that the signature was not that of Robert. The court thereupon examined two papers having signatures of Robert admitted to be genuine, and said: “I am inclined to think that signature is genrnne, and that the whole paper is written in his hand in both cases.” Thereafter, Miss Devoy and the plaintiff testified, each in very positive language, that the signature was not Robert’s, and at the close of the evidence the court said: “I will make a decree awarding the sum to the plaintiff; no costs.” There is nothing in the record to indicate that the learned trial judge ever changed his opinion as to the genuineness of the signature, and therefore we must assume that he based his decision upon the proposition that it was necessary that the instrument be acknowledged in order to constitute an effectual transfer. But, by the treasurer’s receiving and filing the paper without acknowledgment, the association waived insistence upon its by-law in that respect. Such, undoubtedly, is the law as laid down in many authorities, among them Kimball v. Lester, 43 App. Div. 27, 59 N. Y. Supp. 540, where the court held an assignment of an interest in a similar association to be in violation of the constitution, so that the association might have insisted on the restriction, and refused payment; yet, as it had not done so, and was indifferent in the controversy, and had paid the stipulated sum into court, it had waived the restriction, and the beneficiary could not avail herself of such noncompliance with the constitution of the company. The judgment is not in accordance with authority, and should be reversed.

Judgment reversed, and new trial granted, costs to abide the final award of costs. All concur.  