11 A.D. 487, Schad v. Security Mut. Life Assn. of Binghamton

Citation:11 A.D. 487
Party Name:KATHERINE SCHAD and HENRY J. SCHAD, as Administrators, etc., of HENRY SCHAD, Deceased, Respondents, v. THE SECURITY MUTUAL LIFE ASSOCIATION of Binghamton, New York, Appellant.
Court:New York Supreme Court Appelate Division, Third Department
 
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Page 487

11 A.D. 487

KATHERINE SCHAD and HENRY J. SCHAD, as Administrators, etc., of HENRY SCHAD, Deceased, Respondents,

v.

THE SECURITY MUTUAL LIFE ASSOCIATION of Binghamton, New York, Appellant.

Supreme Court of New York, Third Department.

December Term, 1896

APPEAL by the defendant, The Security Mutual Life Association of Binghamton, New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the 17th day of March, 1896, upon the verdict of a jury rendered after a trial at the Broome Circuit on the 7th day of May, 1895, and also from an order entered in said clerk's office on the 17th day of March, 1896, denying the defendant's motion for a new trial made upon a case containing exceptions.

COUNSEL

Carver, Deyo & Jenkins, for the appellant.

R. B. Richards, for the respondents.

MERWIN, J.:

On the 28th of March, 1887, the defendant, in consideration of the application of Henry Schad, plaintiffs' intestate, and of the payment of the admission fee, and of the further payment of the semiannual assessment of twenty dollars and forty-eight cents, to be made at the home office of the defendant at Binghamton, on or before the twenty-eighth days of March and September during the continuance of the contract, received the said Schad as a member of the association, and issued its policy of insurance on his life in the

Page 488

sum of $2,000, payable at his death to his heirs or representatives from the mortuary fund of the association. Henry Schad died October 9, 1892.

No question is made about the right of plaintiffs to bring the action or as to the adequacy of the mortuary fund. The semiannual assessments, as required by the policy, were paid up to and including the payment of the 28th of March, 1892. The payment of twenty dollars and forty eight cents, which by the terms of the policy became due on the 28th of September, 1892, was not paid. The defense is that by reason of this non-payment the policy was void prior to the death of the insured, and the plaintiffs cannot, therefore, recover.

The plaintiffs, however, say that the defendant, under the provisions of chapter 341 of the Laws of 1876, as amended by chapter 321 of the Laws of 1877, had no power to treat the policy as forfeited or lapsed, until giving the notice provided for in that act; that the notice which the defendant did give was not sufficient under the act, or, if it was, that the provisions were waived or were not effective by reason of the prior course of dealing between the parties. The sufficiency of the notice is the main question here.

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