Emmeluth v. Home Ben. Ass'n

• Decision Date: 07 October 1890
• Parties: EMMELUTH v. HOME BEN. ASS'N.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 130

25 N.E. 234

EMMELUTH

v.HOME BEN. ASS'N.

Court of Appeals of New York, Second Division.

Oct. 7, 1890.

Appeal from a judgment of the general term of the supreme court in the second judicial department, affirming a judgment of the special term overruling a demurrer to the complaint.

Action upon a certificate issued by a cooperative insurance corporation organized under chapter 175 of the Laws of 1883. The plaintiff by his amended complaint alleges the corporate character of the defendant, and that, December 8, 1884, in consideration of the annual premium of $10 to it paid by Daniel Sandford, it issued its policy of insurance, whereby it ‘agreed to pay to the sister of said Sandford, and to this plaintiff, and the surviving members of the Five Thousand Club I, within ninety days after receipt’ of proofs of the death of said Sandford, the sum of $5,000 ‘to the surviving members of said club, limited to ten members, share and share alike.’ The certificate, which is made a part of the complaint, states that in consideration of certain representations and agreements, and of the membership fee paid, ‘D. Sandford is an accepted member * * * of the Home Association * * * for the benefit of D. Sandford, self, and the surviving members of Five Thousand Club I, limited to ten members, whose certificates remain in force, share and share alike, unless said member * * * substitute some other beneficiary;’ or, if he should survive such beneficiary, then for the benefit of the legal heirs of said member. The contract further provides that the member is required to pay a gross sum annually, together with assessments when made, and that upon his death, while said certificate is in force, there shall be payable to said beneficiary or beneficiaries the sum of $5,000. The certificate is made subject to various conditions relating to assessments, conduct, excluded risks, etc. The complaint further alleges that on December 8, 1884, the defendant, in consideration of the annual payment of $10, issued its policy of insurance to the plaintiff as a member of said club ‘limited to ten members,’ for the benefit of his wife, ‘in case of his death, and the surviving members of said’ club, and that he ‘is one of the surviving members of said club, and entitled to his share in the benefits thereof, and his policy remains in full force and effect.’ The complaint contains the usual formal allegations as to death, proofs of loss, and the collection of an assessment from the members of the association to the amount of $5,000, which is still held by the company, and that since the death of said Sandford, ‘Stafford Gay and S. Gay, two of the members of said Club I, have withdrawn, leaving eight members of said Five Thousand Club I entitled to receive their share of said $5,000.’ The remaining allegations relate to formal compliance by Sandford and the plaintiff with the conditions of insurance. The defendant demurred, upon the ground that no cause of action was set forth, and because there is a defect of parties plaintiff, ‘in that if plaintiff has any interest in either of the contracts referred to in said amended complaint, * * * such interest is a joint interest with one or more other persons, and no reason is assigned for the non-joinder of said...