Loeb v. Supreme Lodge of Royal Arcanum

• Decision Date: 22 March 1910
• Citation: 91 N.E. 547,198 N.Y. 180
• Parties: LOEB et al. v. SUPREME LODGE OF ROYAL ARCANUM.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 180

91 N.E. 547

LOEB et al.

v.SUPREME LODGE OF ROYAL ARCANUM.

Court of Appeals of New York.

March 22, 1910.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Carrie Loeb and another against the Supreme Lodge of the Royal Arcanum. From a judgment of the Appellate Division (126 App. Div. 951,111 N. Y. Supp. 1128) affirming a judgment dismissing the complaint on the merits, plaintiffs appeal. Affirmed.

Gates Hamburger, for appellants.

Arthur C. Salmon, for respondent.

EDWARD T. BARTLETT, J.

The plaintiffs in this action seek to recover $3,000 on a benefit certificate issued to their father, Jacob Loeb, by the defendant. The plaintiffs were named as beneficiaries in the benefit certificate. On September 28, 1896, one J. C. Chamberlain, collector for the defendant, notified the regent of defendant as follows: ‘You are hereby notified that Bro. Jacob Loeb, a member of this council, failed to pay assessment No. 231, on the 14th day of September, 1896 (thirty days from the date of the notice), and stood suspended by law from the order and all benefits therefrom.’ At a meeting of the council on October 6th, 1896, the suspension was announced by the regent, and proper entries thereof were made on the records of the council. Thereafter the said Jacob Loeb made an application for reinstatement, reading as follows: ‘The undersigned, formerly a member of the council, now under suspension for the payment of _____, hereby makes application for reinstatement in accordance with the laws of the order. I hereby bind myself and family, my relatives and those dependent upon me to the terms of the agreement made in my original application and obligation.’ The applicant also gave his age, residence, and occupation. He gave his age for the reason that under the rules of the defendant an application for reinstatement involved a second medical examination. It is found that ‘the aforsaid application of Jacob Loeb was thereafter and some months prior to his death, which occurred on July 27, 1897, rejected by Manhattan Council No. 217.’ This rejection was based not only on the nonpayment of assessment No. 231, but failure to pass medical examination required as above stated. Thereafter, in a complaint verified on August 9, 1899, which was more than two years after the death of said Jacob Loeb, the plaintiffs brought suit praying for a decree in equity setting aside the declaration and acknowledgment of Jacob Loeb in his lifetime of his suspension from membership and his application for reinstatement as a member, on the ground that the said suspension and all proceedings thereon were unjust, unlawful, illegal, and contrary to the laws and constitution of the defendant and the agreement entered into between the said Loeb and the defendant. The defendant joined issue by answer, verified October 3, 1899. This case was not brought to trial until November 13, 1907, between eight and nine years after the verification of the complaint, and more than ten years after the death of the insured. No explanation was offered for this unusual delay.

A stale claim is not regarded with favor by the courts, particularly a court of equity. It is quite obvious at this point that the relief sought by these plaintiffs, involving, as it did, setting aside the declaration and acknowledgment by Jacob Loeb in his lifetime of his suspension from membership and his application for reinstatement as a member, called for equitable relief. The complaint alleges, among other things, that Jacob Loeb was duly notified, according to the by-laws of the defendant, that he had failed to pay assessment No. 231, which was payable August 14, 1896, and if not paid on or before the 14th day of September, 1896, he would stand suspended from the order and all benefits therefrom. A payment of the amount due under assessment No. 231, by handing it to the collector within 30 days after August 14th, 1896, was alleged. Also, that the said suspension and all proceedings thereunder were unjust, unlawful, illegal, and contrary to the laws and constitution of the defendant, and to the agreement entered into between said Jacob Loeb and the defendant. Also alleged his right to immediate reinstatement and asked that it be made. Also, that by reason of the foregoing facts Jacob Loeb was a member in good standing in the order at the time of his death, and that he never had surrendered his certificate. In brief, the complaint closed with the allegation that Jacob Loeb died a member in good and regular standing, and demanded that the court adjudge that this situation existed by reason of the facts alleged.

It would seem that nothing could be clearer than that this complaint sets forth a state of facts which invoked the powers of a court of equity. Especially is this so when the issues are considered, in view of the answer interposed. The defendant admits the issuing of the benefit certificate. It denies the tender of the amount due under assessment No. 231 as alleged. It further alleges that, by reason of the failure of Jacob Loeb to comply with the rules and regulations of the defendant, he was suspended as in the contract provided.

It is to be borne in mind, as already stated, that on making an application for reinstatement the member stands in the position of an original applicant and has to pass the medical examination in addition to other requirements. This medical examination was had, and Dr. William Moore, state examiner of the state of New York, Southern district, after examining the written report of the physician in charge, stated: ‘The foregoing having been referred to me for decision, I do hereby reject the same.’ Date of approval October 21, 1896. Signed by Dr. Moore in his official capacity.

The fact that the counsel for the plaintiffs saw fit to confine his proofs to the question whether there had been a payment of assessment No. 231 does not in any way narrow the issues involved in this litigation. Henry Loeb, the son of Jacob Loeb, and who was himself insured by the defendant council, was called as a witness for the plaintiffs, and testified, in substance, that he called on Mr. Chamberiain, the collector of the defendant, in the month of August, 1896, and handed him two checks, one for the payment of his own assessment and the other his father's check for the payment of assessment No. 231; that within 30 days from the time said assessment fell due the collector returned to him his father's check in a letter addressed to him by Mr. Chamberlain. As tending to prove the time he called during the month of August, 1896, on the collector, he produced his own check, which was put in evidence and dated August 22, 1896. He failed to produce the letter that he said the collector wrote him accompanying his father's check when it was returned. Neither that letter nor the check was produced on the trial. This witness also testified that the collector gave him a receipt for his own dues on the notice sent him. He was asked on cross-examination why Mr. Chamberlain did not sign his father's notice. He said: ‘I think he was in a hurry. He didn't say anything about my father's assessment at that time. There was nothing said about my own or his own.’

This admission was entered upon the record: ‘The plaintiffs' counsel concedes that Jacob Loeb, after he had received the returned check and letter, told the witness that he would make an application for reinstatement.’ We thus have a record admission that the insured at the time of the tender of this check was not a member of the defendant, but stood suspended.

The defendant, in answer to the evidence just referred to as to the call upon the collector, placed Mr. Chamberlain on the stand. He testified that in dealing with 600 members he could not recall whether Jacob Loeb or his son Henry had called on him on any particular day in August, 1896. He said he kept a blotter at that time, and everything was entered in it. The payment by Henry Loeb at the time named appeared. This witness further testified: ‘To the best of my knowledge and belief and remembrance, I received the check by mail on the 24th of the month. * * * I left the office in 1898, and now I have none of the old books left. I do not remember of receiving on the 22d day of August two checks. One I have shown you and one is his father's, Jacob Loeb, drawn according to his correction of testimony on the Nineteenth Ward Bank. To the best of my knowledge and belief he never submitted any check at that time.’ This witness was asked: ‘Do I understand you to say that you cannot swear that you did see Mr. Henry Loeb between the 22d day of August and the 24th of August? A. I would not be willing to swear to that fact, because it was a long while ago, and I used to see so many men. I have seen Mr. Loeb different times at my office, but as to the particular date I am pretty positive in my mind that Mr. (Henry) Loeb was not there; that I received that check by mail on the 24th and deposited it on the 25th. * * * There was an assessment levied by the Supreme Council numbered 231. That was laid August 15, 1896, 30 days. Of course, it expired September 14, 1896. That assessment was not paid.’

It is to be observed that the collector's official action at the time of the suspension of the insured was based on the nonpayment of assessment No. 231. It should be borne in mind that by reason of the staleness of this claim, as already pointed out, this witness was called upon to testify in regard to an interview which took place over 11 years before the time of his examination. This infirmity also attaches to the testimony of Henry Loeb. It thus appears that the issues, so far as the plaintiffs saw fit to introduce evidence in support of them, were tried on sharply conflicting evidence. The complaint was dismissed for the reason that plaintiffs failed to go on and prove their cause of action as alleged.

It is quite clear that the issues presented by the pleadings...