
    (73 Hun, 319.)
    SULLIVAN v. INDUSTRIAL BEN, ASS’N.
    (Supreme Court, General Term, Fourth Department.
    December 8, 1893.)
    1. Mutual Benefit Insurance—Action on Certificate—Judgment.
    In an action on a mutual benefit certificate, payable out of a “pool,” the complaint, to which was attached a copy of the certificate, alleged that there was a sufficient sum in the pool at the time of the member’s death to pay plaintiff’s claim, and demanded judgment for that amount. The by-laws referred to the certificate, and provided that, if payment should be contested, and judgment rendered in favor of claimant, the claim should “be placed in, and paid pro rata with, the claims of the pool then forming.” The court adjudged that defendant should include plaintiff’s claim in the pool forming at the time of notice of entry of judgment, and ■ directed payment of a proportionate amount. Held,. that the judgment was embraced within the issues, and was therefore authorized, (Code Civil Proc. § 1207,) though the relief granted was not demanded in the complaint.
    8. Same—Failure of Application—Evidence.
    On an issue as to whether an application had been approved by the association, it appeared that the certificate was delivered to the beneficiary by one S., an agent of the society, to whom she paid the premium, and from whom she received a receipt; the application being made at the-same time, and afterwards forwarded to the society. There was evidence that the application was first marked “Approved,” but afterwards the approval wás erased, and it was marked “Rejected.” The premium paid by the beneficiary was retained, and no offer made to return it till; after the death of the member. Held sufficient to sustain a finding that the application was not rejected by the medical examiner.
    8. Same—Authority to Sign Application.
    In an action on a mutual benefit certificate, a nonsuit on the ground that the beneficiary did not have authority to sign the application for the member was properly denied where the beneficiary testified that she had authority to sign the application, and there is no allegation in the answer-to the contrary.
    4. Same—Forfeiture by Nonpayment of Premium.
    Defendant cannot claim a forfeiture for nonpayment of premiums where it repudiated the contract of insurance, and mailed no notice to the-beneficiary that the premium was due, though it did for others, according to its custom, and defendant’s agent refused to receive the-premium because the society had not given him authority to do so.
    Appeal from circuit court, Broome county.
    Action by Catharine D. Sullivan against the Industrial Benefit Association on a certificate of membership. From a judgment entered on a verdict in favor of plaintiff, and from an order denying-a motion for a new trial, made on the minutes of the defendant appeals.
    Affirmed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Walter S. MacGregor, for appellant.
    Carver, Deyo & Jenkins, for respondent.
   MERWIN, J.

This action is based upon a policy or certificate of" membership issued by the defendant, and bearing date August 28, 1891, by which the defendant, “for and in consideration of the representations and warranties made to it in the application for this-certificate, and the sum of four dollars and seventy cents, to it in hand paid, and the agreement to pay a like sum every two months. during the balance of the first year, and then four dollars and seventy cents every two months thereafter,” constituted Mary O’Brien a member of Class B of the association, with the provision that the beneficiary therein named should receive two shares of the mortuary fund collected for the pool, so called, in which the proof of death of the member is approved by the association; the maximum value of each share being $250. The certificate also provided that all premiums paid on account of certificates terminated by death and approved in any pool in this class should be returned to the claimants thereof out of and before the distribution of the mortuary fund. The plaintiff, Catharine D. Sullivan, the daughter of the member, was named as the beneficiary, and the certificate was stated to be issued on the conditions and stipulations stated in the application, and upon the conditions and agreements contained in the by-laws of the association. Mrs. O’Brien died on the 12th November, 1891. In the by-laws there is a provision that, “in case the payment of any claim is contested by the association, and a judgment is rendered in favor of the claimant, the said claim shall be placed in, and paid pro rata with, the claims of the pool then forming.” By the judgment in this case it is “ordered and adjudged that the defendant shall include the plaintiff’s claim in the pool forming at the time of the service upon the attorney for the defendant of a copy of this judgment and notice of its entry, and from such pool the defendant is directed to pay to the plaintiff the proportionate amount thereof that she should be entitled to under the certificate which she holds and the by-laws of the company.” No misstatement or fraud is charged, and there is no dispute as to the amount or form of recovery in case the plaintiff is here entitled to recover at all. The defendant claims (1) that the court erred in refusing to grant a nonsuit on the ground that under the by-laws of the defendant the plaintiff was not entitled to maintain an action at law to recover money damages on the certificate; (2) that the court erred in holding that the policy ever had a valid inception; (3) that the court erred in refusing to grant a nonsuit on the ground that no application was made by Mary O’Brien for the issuance of the certificate; (4) that the court erred in holding that the policy was not lapsed for failure to pay the premium due November 1, 1891.

1. The complaint sets out the making of the certificate or policy, stating its effect, and a copy is attached. It is alleged that all the conditions of the contract to be performed by .the plaintiff or by Mrs. O’Brien have been performed, or their performance waived by defendant. The death is alleged, and notification thereof in due time to the defendant, and that defendant waived proofs of death. It was then alleged that at the time of Mrs. O’Brien’s death and since that time the moneys collected in the mortuary fund for the pool, out of which the plaintiff should be paid the benefit under the certificate, were sufficient to pay the plaintiff the maximum amount of the shares, being altogether $500, no. part of which had been paid. Judgment for that sum was demanded. In the. certificate it is stated that it is issued and accepted upon the conditions and agreements contained in the by-laws of the association. The case was tried at the circuit before the court and a jury. At the close of the evidence, in view of the provision of the by-laws that, in case of contest of a claim and judgment in favor of the claimant, the claim should be placed in and paid pro rata with the claims of the pool then forming, the court stated and held that it would allow the action to stand as an equity action, and take the advice of the jury on the question of fact as to whether the application was rejected by the medical director of the defendant on the 28th August, 1891. The court asked the counsel for the defendant if there was any other question of fact that he desired to have submitted to the jury, and the reply, in substance, was that there was not. The question of fact, as above suggested, was then submitted to the jury, and the verdict was that the application was not rejected by the medical director on the 28th of August, 1891. The court then made its decision embodying findings of fact and law, and in accordance with such decision the judgment appealed from was entered.

The relief granted was not demanded in the complaint, and the defendant claims that in this action the court had no right to grant it. An answer having been interposed, the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issue. Code, § 1207. The fact that the wrong relief was asked is not important. Murtha v. Curley, 90 N. Y. 377. The judgment was based upon the cause of action as alleged and proved. The form and amount of the recovery is regulated by the by-laws which are referred to in the certificate, which is a part of the complaint. The judgment was certainly embraced within the issue, and was also consistent with the case made by the complaint. It was fixed by the certificate and the by-laws. It is not claimed that the judgment is wrong if the court had the power to grant it. Smith v. Society, 64 Hun, 534, 19 N. Y. Supp. 432. We think that the court had the power. It is to be' observed that the defendant had opportunity to go to the jury on all questions that it desired to. It in effect consented that the court pass on all the questions of fact aside from the one submitted, and render the proper judgment. It is not material whether it be called a trial at equity or law.

2. The theory of the defendant on the second proposition is that the application was not approved by the company, and the policy was by mistake delivered to the plaintiff. There is evidence showing that Mr. Sperry, the agent of defendant, saw the plaintiff on the subject of transferring to the defendant a policy she was carrying on the life of her mother in the Flower City Insurance Company, and which she was willing to transfer to the defendant; that, soon after this, Mr. Mahar, who seems to have been acting for defendant at the request of Mr. Sperry, called on the plaintiff, and delivered to her the policy in question, she paying him therefor the premium of $4.70, and receiving therefor the receipt of Mr. Sperry for the defendant; that on the same occasion Mr. Mahar wrote out the application, and it was signed by plaintiff, and she also signed the name of her mother. This was forwarded to the defendant, and there is evidence tending to show that at first it was marked “Approved” by the proper officer of the defendant, but afterwards the approval was erased, and it was marked ‘Rejected.” The premium paid by plaintiff was received by the defendant, and there was no return of it, or offer to return it, until after the death of Mrs. O’Brien; nor was the return of the policy demanded, or the plaintiff informed before the death that the application was rejected. The court submitted to the jury the question whether the application was rejected by the medical officer of the defendant upon its receipt by it on the 28th August, 1891, and they found that it was not. This finding the court in its subsequent disposition of the case adopted, in effect determining that the policy was delivered by the defendant as and for a good and valid policy. We find no good reason for disturbing this conclusion.

3. But it is said that the application was not in fact signed by Mrs. O’Brien. She was not present at the time the application was made out by the agent of the defendant, and the policy delivered. The agent asked the plaintiff to sign her mother’s name, and she did so. The plaintiff testifies that her mother knew of the application being made; that she spoke to her beforehand about it. There is in the answer no allegation that the plaintiff did not have authority to act for her mother. On the contrary, it is affirmatively alleged that Mrs. O’Brien made the application. So far as this question is concerned, we think the nonsuit was properly denied.

4. Was the policy forfeited by reason of the failure to pay the premium due November 1, 1891? The plaintiff, a short time before this date, called on Mr. Sperry, who had given her the receipt for the first premium, and offered to pay the premium soon becoming due. He declined to receive it, saying that he had no receipt from the company for her among the receipts that had been sent him, and therefore could not accept her premium. The plaintiff replied she did not understand it, and the result was he promised to call the attention of the company to the fact of her call, and see what there was of it. Apparently the plaintiff heard nothing further about it, and the death occurred on the 12th November. Mr. Sperry was employed by the defendant to assist in obtaining transfers from the Flower City Company to the defendant, and in that matter, to the knowledge and assent of defendant, he gave receipts for the defendant in his individual name for the premiums paid at the time Of the transfer. The plaintiff had such a receipt for her first premium. The defendant knew that Sperry had been accustomed to receive the premiums in the Flower City, and they also employed him to act as their collector. He, however, for any premiums after the first, had in fact no authority to collect except upon receipts furnished by the company. The bylaws of the defendant provided that premiums should be payable at the home office of the association, “but if, for the sake of convenience or otherwise, any premiums are paid to collectors or agents of the association, such collector or agent shall be deemed and held to be the agent of the members so paying, unless the agent or collector shall furnish the members so "paying a receipt for said premium, signed by the secretary of the association, or enter the same in the member’s individual receipt book; otherwise no payment to any such agent or collector shall be binding upon the association until received and accepted by it.” One clause of the application stated where and to whom “notices of premiums due” should be sent. In one of the by-laws which related to the class of policies in which was the plaintiff’s, there is a provision that “a notice of premium due shall be mailed to the last known post-office address of each member of this class during the first ten days of February, April, June, August, October, and December of each year, and will fall due and must be paid on or before the first business day of the month following the date of notice; and any certificate upon which premium is not paid on or before the date it falls due will be subject to the penalties provided in article five of these bylaws.” The article as to the penalties is not printed in the case, but the inference from the application is that failure to pay when due was made a cause of forfeiture of the certificate and the previous payments. It may be inferred from the evidence that the notice above referred to was never mailed to the plaintiff, though she was named in the application as the person to whom notices should be sent, and her address was given. There was evidence tending to show, and the court found, that at the time when the second premium would have become due under the certificate the company disowned its obligation under it, and failed to send to their agent, Mr. Sperry, a receipt, on the ground that the certificate was not an existing obligation upon their part. If, prior to 1st November, the defendant repudiated its contract, mailed no notice to the plaintiff, and sent no receipt to its agent for the plaintiff, although it did for others, according to its custom, it should not be permitted to say that there was a forfeiture by reason of the nonpayment. The plaintiff saw the agent of the defendant, with whom she had personally dealt with the approval of the defendant, and paid the first premium. She had a right to believe that he would know what the defendant wanted, and, in the absence of the notice called for by the by-laws, she was not required to send the premium to the home office on pain of forfeiture. Ordinarily a tender is not necessary when the acts and conduct of the other party indicate that it will be futile. Baumann v. Pinckney, 118 N. Y. 604, 23 N. E. 916; Insurance Co. v. Smith, 44 Ohio St. 157, 5 N. E. 417. A company cannot take advantage of a forfeiture that it encourages by a failure to give its accustomed notice before the premium is due. Helme v. Insurance Co., 61 Pa. St. 107. No tender was necessary after the death, as by the terms of the certificate the premiums paid were to be returned to the insured. These considerations lead to the conclusion that the court below correctly held that the defense of forfeiture was not made out. It" follows that the judgment should be affirmed.

Judgment and order affirmed, with costs. All concur.  