
    Maggie La Manna, Adm’rx, Resp’t, v. The National Security Life & Accident Co., App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    ¡Benefit societies — Construction of certificate.
    The certificate or policy issued by defendant provides for the payment of a certain sum of money upon the death of a member, “ as provided in the constitution.” The constitution provides that, “the company shall not be liable in case of the death of a member for more than one-fifth the net amount of the bi-monthly premiums next following said death on all the members of the department to which* such deceased member belongs, for each $1,000 of death benefit named in his policy. This, however, does not prohibit the board of directors from paying a loss in full, but the amount paid shall in no case exceed the amount stated in the policy.” Held, that the contract was for the amount stated in it, unless reduced by the company, and that, in the absence of proof as to the department in which the deceased belonged or the amount of the bi-monthly premiums, a verdict for the full amount is proper.
    Appeal from judgment in favor of plaintiff, entered on verllict for $5,000, directed by the court, and from order denying Inotion for a new trial.
    
      ,D. W. Northup, for app’lt; Wm Allan, for resp’t.
   Barnard, P. J.

The defendant issued a certificate or policy J>f insurance constituting John B. La Manna a member of the defendant's company and covenanted to pay his estate $5,000 upon lis death, “as provided in the constitution.” Whether designed gr not, the contract is made blind and uncertain by the words Imiting the risk to an instrument made by the defendant, and Ine which would not usually be received by an assured person. The constitution referred to contains this section:

Sec. 2. “ The company shall not be. liable in' case of the death If a member for more than one-fifth the net amount of the bimonthly premiums next following said death on all the members " the department to which such deceased member belongs for kch $1,000 of death benefit named in his policy. This, however, dcs not prohibit the board of directors from paying a loss in Jill, but the amount paid shall in no case exceed the amount lated in policy.”

I The contract is not plain with this addition. The death fund stated in the constitution to be eighty per cent, of the net rount of bi-monthly premiums. The department to which the hceased member belongs is not given, and so far as the case lows has never been fixed. This action is based upon the policy. 1 avers the contract of insurance, the death of the assured, that kept all the conditions of the policy, and that the company Ive failed to pay on due proof of death at the time provided for lyment in the contract. The defendant admits its corporative listence, admits the death of the assured and non-payment, and Inies all other allegations. Upon these pleadings the parties en-led upon the trial. The first objection taken is to the complaint, lat the plaintiff should have averred what was due as provided |the constitution. The objection was overruled on the ground lit the contract-was for the amount stated i.n it, unless the same was reduced by the company. This was the correct view of the contract.

The agreement to pay was absolute. The reference to the constitution did not reduce the claim unless one-fifth of the bimonthly assessments or premiums next after the death was insufficient to pay the whole amount, or unless .the directors did not elect to pay in full from what they had, or from bi-monthly dues. The application and the constitution use all these several terms. The rule of construction is to be favorable to the assured. Dilleber v. Home Ins. Co., 69 N. Y., 256.

The constitution fails to show any contract which calls for the payment of a sum less than the amount of the policy. Beading it altogether, there is a general death fund which can only be used to pay death claims, and a reserve fund which can only be used to make good a deficiency in the death fund. The policy cannot be read by an applicant for insurance and the result be reached that little or nothing may be payable under it, and that the assured undertakes to make averments and proof, which he has full power by the constitution to do. No prooi was given or offered to show to which department the deceased was a member, nor the amount of the bi-monthly premium next after his death. If the word “ department ” is designed to express a class of policies, to which does this one belong, and hoy many life members are there in it, and does § 3 of title 8 of th< constitution make the reserve fund liable to pay the loss. Th< constitution does not show that the defendant is entitled to anj reduction, nor does it give .facts from which such a result can be determined. The directors have power to increase the bi-monthlj payments. As appears from the policy in question, "the bi monthly premium has been increased three-fold. If a bi-monthl; premium is something different from a bi-monthly expense pre mium, which would show this in an action to recover upon it There was proof given tending to show a waiver of the preliminar loss papers, and the death of the assured is admitted by th owner. This company sent no blanks, and in fact it was prove: to have adopted loss papers served, although informal, and th refusal to pay was not put on the ground of defective loss paperi There was no question of fact to go to the jury, and the verdie for the full amount was properly ordered.

Judgment affirmed, with costs.

Dykman and Pratt, JJ., concur.  