p. 446Hyman Greenspau, Resp’t, v. The American Star Order, App’lt.(City Court of New York, General Term,Headnote
1. Benefit societies—Death benefits—Pkoof of by-laws.It is not error to allow the plaintiff in an action against a benefit society for death benefits to prove by paroi the by-laws of the defendant, where the answer specifically sets forth the requirements of the constitution and by-laws, and the amount of the benefits is admitted.
The defendant is estopped from questioning a certificate of good health of plaintiff's wife by the fact that plaintiff paid dues as a single man prior to his marriage, and larger dues as a married man after that date to his wife’s death and that defendant accepted and receipted for such larger dues.
Appeal by defendant from judgment entered against it on verdict returned by jury.
A. H. Sarasohn, for resp’t; A. P. Wagener, for app’lt.
This action is by a member of the defendant, .a benefit society, to recover a benefit of five hundred dollars due him upon the death of his wife. When plaintiff first became a member of the defendant he was single, but afterwards married. The defendant’s contention on this appeal is, that plaintiff was allowed, against defendant’s objection and exception, to prove by paroi the provisions of the by-laws as regards death benefits to such member on the death of his wife, without first laying the proper basis for the introduction of secondary evidence as to the ■same. But this cannot avail it, for it was not necessary to prove the by-laws at all in view of the allegations of the seventh paragraph of the answer, which specifically set forth the requirements of the constitution, rules and by-laws of defendant as regards the duties and rights of such a member, except as to the amount of the benefit due such member, and at folio 59 of the case defendant admitted that such member was entitled to $500 upon demise of his wife.
The plaintiff has proved by competent evidence that he has complied with all the requirements of the constitution and bylaws as set forth in this paragraph of the answer. The plaintiff alleged that he presented to defendant on July 5, 1890, the physician’s certificate of the good health of his wife, and after ad
p. 447mission by defendant of due notice to produce this certificate and refusal to so produce, he was allowed to prove its contents by paroi, and the question and answer at folio 80 shows that it stated that “ she was well and everything right,” and this was sufficient,, and moreover, it would seem that the defendant is estopped from questioning this certificate, for it was duly proven by the financial secretary of defendant at folio 55 that plaintiff had paid dues as a single member before his marriage in 1890, and afterwards as a married man, and so continued to pay until his wife died in February, 1891; that these dues as a married man were greater than as a single man, and that the same were accepted by the defendant and receipted for by it. This judgment should be affirmed,, with costs.
McG-own and McCarthy, JJ., concur.