
    William Emmeluth, Resp’t, v. Home Benefit Association, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    1. Insurance—Life—Mutual benefit association—Policy—Construction of.
    By the terms of a certain policy of life insurance issued by the Home-Benefit Association to one D. Sandford, it was “for the benefit of D. Sandford self and the surviving members of five thousand club, ‘ T.’ limited to ten members, whose certificates remain in force share and share alike,” etc. The said Sandford died and the plaintiff was one of the surviving members of said club, and his policy still remained in force. There was no provision made in the policy in question for the payment ot'_ the sum due to all the surviving members of said club, whose policy remained in force in one instalment, and its subsequent division among those entitled thereto. Held, that, the plaintiff had a right to receive directly from?the company the sum to which he was entitled under said policy.
    
      2. Same&emdash;When interest of policy holders separate&emdash;Contracts.
    In contracts of this nature if one sum in solido is not to he paid in the first instance and afterward divided, but if separate and independent payments are to be made to each, then the interests are separate.
    3. Contract&emdash;Construction of.
    In the construction of contracts the interest of the parties will govern in. those cases where there is more than one party on either side. If the terms of the contract are apparently joint and the interest several, the contract will be construed to be several, and vice versa.
    
    Appeal from an order made at the Westchester county special term overruling the demurrer of the defendant to the complaint, and from the judgment in favor of plaintiff entered thereon.
    The policy referred to so far as material was as follows :
    Life Department.
    No. 4380. $5,000.
    HOME BENEFIT ASSOCIATION.
    Incorporated Under New York Laws.
    Certificate of Membership.
    
      In Consideration
    
    of the representations and agreements made in me application herefor, and which is a part of this contract, and of the membership fee,-, D. Sandford, -, of --, New York, state of New York, is an accepted member of the Life Department of the Home Benefit Association, subject to all the requirements as hereinafter stated, and for the benefit of D. Sandford, self, and the surviving members of Five Thousand Club “T,” limited to ten members, whose certificates remain in force share and share alike, unless said member shall, in writing, filed with this association, substitute some other beneficiary; or if the said member should survive the beneficiary last named herein, then for the benefit of said member’s legal heirs.
    The said member is required to pay the sum of Ten Dollars, as an expense fee, and a like sum annually, on or before the first day of the month in which this certificate is dated; and this certificate shall not be binding upon the association until the said sum shall have been actually paid to the association, and during the life-time of said member. No claim shall be made under this certificate, should the member neglect or omit to pay the said annual fee whep due, or to pay the assessments hereinafter mentioned, within thirty days from date of notice.
    Within ninety days from the receipt of satisfactory proofs of death of the said member, during the continuance of this certificate in force, there shall be payable to the said beneficiary or beneficiaries^ from the Benefit Fund of said Life Department, the sum of Five Thousand Dollars, provided, however, that if, at the time when the said claim shall become due, the Benefit Fund on hand shall not be sufficient to pay the same, an assessment shall be levied on all the members of said Life Department, and payment deferred until the same is collected'; and provided, further, that the liability of the Association on this Certificate shall not exceed the amount actually collected within thirty days from the date of levy, from the assessment so levied.
    
      Lawlor & Swits, for resp’t; Hal Bell, for app’lt.
   Barnard, P. J.

In the construction of contracts the following principle applies that the interest of the parties will govern in those cases where there, is more than one party on either side. If the terms of the contract are apparently joint and the interest .several the contract will be construed to be several and vice versa. Volume 1, Addison on Contracts, p. 79.

In the present case, in regard to the construction of the •certificate of membership or policy of insurance set forth in the complaint, it is clearly for the interest of the persons, not exceeding ten in number, who are to receive the amount of $5,000 mentioned in said certificate of membership. We also find in Addison on Contracts that in the construction of a contract of this nature if one sum in solido is not to be paid in the first instance and afterwards divided, but separate and independent payments are to be made to each, then the interests are separate. Addison on Contracts, Vol. 1, p. 80.

In the present case under consideration a reasonable construction of the certificate of membership set forth in the complaint would lead to the conclusion that those members whose certificates of membership were in force at the time of the death of the party, in reference to whose death this action is brought, would have a right to receive directly from the company the sums to which they were respectively entitled, there being no provision made for the payment of the sum in one installment and its subsequent division among those entitled thereto.

As to that ground of demurrer which relates to the fact that two members who were entitled, at the time of death, to a portion of" the funds have withdrawn subsequent thereto, this is no valid objection to the complaint because it only affects the amount to which the plaintiff is entitled, and not the right of action which remains valid and in full force. Moreover, from the terms of the present policy or certificate, it is by no means clear that the undertaking to pay the $5,000 is a joint undertaking, and furthermore -covenants are to be construed according to their spirit and intent, and where, from the subject-matter of the covenant, it is the evident intent of the parties that they should be taken distributively, they may be-so taken, although there are no express words of severalty.

The intention of the parties must control where the exact nature of the covenant is in doubt. Ludlow v. McCrea, 1 Wend., 228; Quackenboss v. Lansing, 6 Johns., 49.

The order overruling the demurrer and judgment thereon should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.  