Willison v. Jewelers & Tradesmen's Co. , 61 N.Y.S. 1125 ( 1899 )

O’Dwyer, J.

The constitution and by-laws of the defendant were excluded because not shown to have been brought to the attention of deceased. The policy itsblf provided that the rights given thereby should be subject to the constitution and bylaws. It expressly made the application a part of the policy and the application expressly made the constitution and by-laws, rules and regulations, a part of the policy. The deceased signed the application and it was his duty to know its own contents and he must be presumed to have known that the constitution and by-laws were a part of the policy. But had not this been so, the defendant being an assessment company, the deceased, as a member of it, was chargeable of knowledge of all its rules and regulations and was bound thereby. May v. Safety Fund Society, 14 Daly, 389. In assessment associations like that of the defendant, the constitution and by-laws constitute part of the contract and are to be considered with the policy in determining the rights of the members and the obligations of the company. Matter of Equitable Reserve Fund L. Assn., 131 N. Y. 369; Hellenberg v. District No. 1, etc., 94 id. 580; Demings v. Supreme Lodge, 131 id. 522; Syuchar v. Workingman’s Association, 14 Misc. Rep. 10; 35 N. Y. Supp. 124. “ The difference between a certificate of membership in a beneficial association and a life policy is that, in the latter, the rights of the beneficiary are fixed by the policy, while in the former they depend upon the constitution and by-laws of the society.” Numrich v. Supreme Lodge, 3 N. Y. Supp. 552. The defendant proved that it was a mutual assessment association, and this, in addition to the reference in the application to the by-laws, entitled the defendant to their admission in evidence as part of the contract of insurance. The exclusion of a constitution and by-laws materially injured the defendant because the contract of insurance expressly provided that the policy should not be in force until thirty days after it has issued, and that, in the event of death prior thereto, no claim should be paid thereon, but only a sum equal to the premiums paid should be payable. § 2, art. VIII, of by-laws. The evidence conclusively proved that the deceased died prior to the expiration of such thirty days. It was a condition precedent to the validity of the policy that the insured should live thirty days after it was issued and, he not having done so, the policy was of no force or effect and no liability thereunder attached to the defendant.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event,

Scotchman, J., concurs.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.