Wadsworth v. Jewelers' & Tradesmen's Co. of New York

• Decision Date: 12 February 1892
• Citation: 29 N.E. 1104,132 N.Y. 540
• Parties: WADSWORTH v. JEWELERS' & TRADESMEN'S CO. OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 540

29 N.E. 1104

WADSWORTH

v.JEWELERS' & TRADESMEN'S CO. OF NEW YORK.

Court of Appeals of New York,

Second Division.

Feb. 12, 1892.

Appeal from superior court of New York city, general term.

Action by Myra L. Wadsworth against the Jewelers' & Tradesmen's Company of New York on a certificate of insurance. From a judgment of the general term affirming a judgment in favor of the plaintiff for $3,547, defendant appeals. Affirmed.

James M. Hunt, for appellant.

S. F. Kneeland, for respondent.

LANDON, J.

The plaintiff seeks to recover upon a certificate of insurance issued by the defendant upon the life of Elbert E. Wadsworth, her late husband, for her benefit. The only question presented by this appeal is as to the amount payable to the plaintiff under the contract of insurance. The defendant is a mutual benefit association incorporated in 1886 under chapter 175, Laws 1883. It issued its certificate of membership or policy of insurance to the plaintiff's husband, which, after preliminary recitals, declared: ‘There shall be payable to Myra L. Wadsworth $4,000 from the death fund of the company at the time of said death, or from any moneys that shall be realized to the said fund from the next assessment, as hereinafter set forth; and no claim shall be otherwise due or payable except from the reserve fund, as hereinafter provided.’ It will be observed that there is no plain suggestion in this provision that the amount payable is in any way liable to be lessened. It is to be paid-all of it-‘from the death fund of the company at the time of said death.’ But, lest that fund at that time may not be large enough, the further provision is added, obviously to supply the deficiency, ‘or from any moneys that shall be realized to the said fund from the next assessment, to be made as hereinafter set forth.’ The final clause of the promise, ‘and no claim shall be otherwise due or payable except from the reserve fund as hereinafter provided,’ gives notice that there is also a reserve fund, to which recourse may be had. The insured, reading the entire provision, would probably regard it as immaterial to him whether payment should be made from one fund or another, but would remark with satisfaction that three sources for payment were provided. The trial court awarded the plaintiff all the moneys in the death fund at the time of the death of her husband, namely, $1,798.35, and also all that were ‘realized to the said fund from the next assessment,’ namely, $1,749.07, being 80 per centum of the total assessment. The aggregate of both sums fell short of $4,000. There was no reserve fund applicable to the payment, and the plaintiff has therefore recovered less than the amount apparently promised her. The defendant opposes the construction we have given to the promissory parts, of the contract, and claims that the plaintiff was only entitled to the amount in the death fund at the date of the death, or to the amount ‘realized to that fund from the next assessment,’ and not to both amounts.

The whole contract consists, not only of the certificate of membership, but of the application for membership, and the constitution and by-laws of the defendant,-quite a volume of matter, requiring careful attention, and possibly skill, for a complete understanding of the precise contractual relations of the insurer and insured. But the other...