Quinn v. Supreme Council, Catholic Benevolent Legion

Majority

p. 43

Ellen Mary Quinn, Appellant, v. Supreme Council, Catholic Benevolent Legion, Respondent.

Second Department,

March 28, 1913.

Headnote

Insurance—benevolent association — action upon benefit certificate — defense —prior judgment in action upon same certificate.

A certificate was issued to a member of a benevolent association payable to his wife upon his death. In the following year the wife buried the body of a man supposed to be her husband, but her husband thereafter appeared and was restored to membership in the association and was kept in good standing until a certain day four years later, when the wife

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buried the body of another man as that of her husband. She then filed with the association proofs of her husband’s death and her claim, and tendered payment of- the premiums required by the benefit certificate, but this tender was refused on the ground of the existence of the death claim, the payments tendered being in advance and not premiums due prior to the date of the alleged death. In an action brought by the wife upon the certificate the association denied the death of the husband on the day named, and its liability on the death certificate and a judgment was entered in its favor, which has not been appealed from, canceled or modified in any way.

In a subsequent action brought by the wife against the association alleging the same facts as in the prior action, held, that the judgment in the prior action is a bar and the complaint was properly dismissed.

The fact that the plaintiff selected different counsel to bring the second ■ action and made an agreement with him by which he was to have an attorney’s lien for one-half the amount which he might recover does not relieve her from the bar of the pridr judgment.

Appeal by the plaintiff, Ellen Mary Quinn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of June, 1911, upon the special verdict of a jury dismissing the complaint.

James P. Kohler, for the appellant.

Edward J. Connolly, for the respondent.

This action is brought to recover the sum of $2,000 with interest, on á benefit certificate issued by the defendant, a benevolent association organized, under the laws of the State, which certificate was issued to the plaintiff’s husband, the amount being payable to the plaintiff upon her husband’s death. The certificate was issued on April 4, 1892. In the year 1893 the plaintiff buried the body of a man supposed to be her husband, but her husband thereafter appeared and was restored to membership in the defendant organization, and he was kept in good standing until July 27, 1899. On that day the plaintiff buried the body of • another manas that of her husband. She filed with the defendant proofs of her husband’s death and of her claim, as required by the rules and regulations of the order, and tendered payment of the premiums required by the benefit certificate, which were semi-monthly, but this

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tender was refused by the defendant on the ground of the existence of the death claim, the payments tendered being in advance, and not premiums due prior to the date of the alleged death. The defendant disputed the fact of the member’s death, and an action was thereupon brought in the Supreme Court, in the year 1901, on a complaint alleging the death of the plaintiff’s husband on the 27th day of July, 1899. The defendant interposed an answer admitting that on the 27th day of July, 1899, the plaintiff’s husband was a member of the association in good standing, with all dues and assessments paid up at that time, but denied his death on the day named and its liability on the death certificate. The case was duly tried and resulted in a judgment in favor of the .defendant, entered on May 14, 1904, which judgment has never been appealed from, canceled or modified in any way.

The plaintiff then brought this action on August 6, 1909, alleging the same cause of action as in the first suit, charging that her husband died on the 27th day of July, 1899, and demanding therefor the sum of money required to be paid by the terms of the benefit certificate. On the trial the court submitted to the jury for determination two questions which appear to have been wholly undisputed, namely, the offer of the plaintiff to pay the two assessments hereinbefore referred to, and the refusal of the defendant to accept the same, and upon the rendition of a verdict by the jury in accordance with the facts in relation thereto, directed the entry of judgment dismissing the complaint, with costs.

I am unable to see any ground for interference with the. result. The former adjudication is clearly a bar to the maintenance of the present action. It is urged on behalf of the appellant that such judgment is not a bar because she selected a different counsel to bring the second suit, and she appears to have made an agreement with him by which he is to have an attorney’s hen for one-half of the amount which may be recovered. In its answer, the defendant asserted as a separate defense that said attorney was interested in the claim and should be made a party plaintiff, but that defense was withdrawn upon the trial without objection. In any event, the agreement for the compensation of the attorney Would not

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make him a necessary or proper party plaintiff; and the former adjudication, beinp between the same parties, is necessarily binding and conclusive. There is" no pretense that the benefit certificate has been kept, alive by the. payment of the half-monthly premiums required to be paid since July, 1899,, and the plaintiff can, therefore, have no standing to maintain the present action onj the assumption that her husband may be presumed to have died since 1899, by reason of. the lapse of time since.

he judgment should be affirmed, with costs. It follows that i

Burr, Thomas and RIgh, JJ., concurred.

Judgment affirmed, with costs. .