#### Frederica Preuster, Resp’t, *v.*The Supreme Council of the Order of Chosen Friends, App’lt.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 2, 1891.)*

Benefit societies—Forfeiture—Waiver.

The application of one R. for membership in the defendant organization contained an untrue statement as to his age, which under the terms of the certificate forfeited his rights to all benefits and privileges. Charges of fraud were afterwards lodged against him with a view to liis expulsion, based on such untrue statement, and evidence was taken at his birth place in Germany as to the date of his birth. Pending the taking and return of such evidence two assessments were levied, which were paid by R. *Held,*that no waiver of the forfeiture could be inferred from the acts of the secretary in levying and collecting these assessments, as neither he nor the council could prejudge the case pending investigation, or withhold notice or refuse payment by him while he yet remained in good standing.

Appeal from an order of special term (Erie, September, 1890), granting the plaintiff’s motion for a new trial, on case and exceptions, after a verdict for the defendant, directed by the court at the circuit

*John E. Pound,*for app’lt; *Frank Brundage,*for resp’t.

*606Dwight, P. J.

The action was to recover on a beneficiary certificate of membership in the defendant association, issued to one C. C. Reim, and payable in case of his death to -the plaintiff, his sister. The defense was founded upon a material misrepresentation in respect to his age, contained in the application of the insured, and the plaintiff sought to avoid the defense on the ground of waiver.

The statement of the insured in his application made May 23, 1882, was that he was sixty years old, and that he was born on the 4th day of February, 1822; the undisputed evidence showed that he was more than sixty-one years of age; the plaintiff herself testifying that 'he was born on the 4th day of February,. 1821. The misrepresentation was material, because, as appears by the table of rates contained in the by-laws of the defendant and printed on the face of the certificate itself, no person was eligible to a beneficiary membership who was past the age of sixty-one years; and by the express terms of his application it worked a forfeiture of all his rights under the certificate. The language of the application in that respect was as follows : “I do hereby further consent and agree that any untrue or fraudulent statement made above ” and the representation as to his age and date of birth, preceded that stipulation * * * “or my suspension or expulsion from * * * the order, shall forfeit my rights to all benefits and privileges therein.”

Here by the express terms of the contract was an absolute forfeiture of all rights otherwise secured by it, which was fatal to the plaintiff’s cause of action unless the defense was in some manner avoided. It was upon the ground of such forfeiture that the learned judge at the circuit directed a verdict for the defendant; it was upon the ground that the jury should have been permitted to pass upon the question whether the forfeiture was waived ; that the same judge, at special term, granted the motion for a new trial. We think the direction of a verdict was correct and that the motion for a new trial was improperly granted.

Without stopping to consider several questions raised by the argument, as, whether the term forfeiture is properly applied in the case of a contract which was void from the beginning; whether the officers of a subordinate and local council of the defendant have any power to waive such a forfeiture, or any other; and whether such a forfeiture can be waived even by the general officers of an association such as the defendant; without discussing any of these questions we find a complete answer to the theory of waiver in the fact that the officer charged with the act of waiver had no knowledge of the facts out of which the forfeiture arose.

The narrative of the case in this connection is as follows: The member had suffered an attack of paralysis and had made application for relief for total disability, which was within the provisions of the certificate, when a charge was lodged against him, with the local council, with a view to his expulsion, to the effect-that he had procured his certificate by a fraudulent representation as to his age. The charge was entertained and investigated,, and means were taken to obtain evidence on the subject from his-*607birth place in Germany. While this investigation was pending and while the evidence from Germany was expected, two assessments were made in the ordinary course of the business of the defendant Of these assessments the insured, in this case, was notified, in the usual manner, by the secretary of the local council, and payments of the same were received when offered. There was at this time nothing to charge the secretary or the council with knowledge of the facts which gave rise to the forfeiture. It was known that the charge of fraud had been made against the insured, but the secretary or the council had no knowledge that the charge was true. They were bound to presume it not true until it was proved. The had no right to refuse payment of an assessment by a member so long as he continued a member in .good standing, and the standing of the member in this case was unaffected by charges not yet proved. The case is not one. in which information which puts the recipient on enquiry has the effect of knowledge of the facts.

This council and its officers were, in truth, put upon enquiry, and the enquiry was being prosecuted officially; but, in the meantime, there were assessments to be made and collected; the standing of the insured was yet unaffected, and he was as much liable and as much entitled to be notified of 'and to pay his assessments as any other member. Neither the secretary nor the council could prejudge his case pending its investigation, and neither had the right to withhold notice or to refuse payment of his assessments. For these reasons there was no waiver of the forfeiture in question which was to be inferred from the acts of the secretary in levying and collecting these assessments. *Barteau*v. *Phoenix Mut. Life Ins. Co.,*67 N. Y., 595; *Devins*v. *Mech. & T. Ins, Co.,*83 id., 173; *Robertson*v. *Met. Life Ins. Co.,*88 id., 541.

We discover no error on the trial which was to the prejudice of the. plaintiff. The copy of the entry in the baptismal register of -St. Peter’s church at Langensalza, Saxony, was inadmissible as evidence in this case, and was immaterial as evidence of what was •before the committee of the council on their investigation; but it was not to the prejudice of the plaintiff, because her own and other undisputed testimony established the fact of the false statement in the application of the insured.

We find in the case no error which vitiates the verdict rendered by direction of the court That direction seems to have been correctly given.

The order granting a new trial must be reversed.

Order appealed from reversed and judgment ordered for the defendant on the verdict.

Macomber, J., concurs.