Grimaldi v. Associazione Fraterna Italiana

31 Misc. 745, 64 N.Y.S. 25

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1900
• Status: Published

Opinion

0’Gorman, J.

Plaintiff’s claim for sick benefits is resisted on the ground that h.e obtained admission to the society by false representations. While the evidence offered upon the trial amply supported this defense, the plaintiff was, nevertheless, entitled to recover, inasmuch as there was a waiver on the part of the defendant by its acceptance of dues from the plaintiff, with full knowledge of the falsity of the representations now complained of.

Plaintiff became a member of the defendant association in January, 1898. In June, 1899, he was taken ill, and then informed the president of the defendant, as well as defendant’s physician, that prior to his admission into the society, he had been subject to attacks of epilepsy. This is the principal evidence now relied upon by the defendant. ' It appears, however, without contradiction, that notwithstanding this disclosure as to his previous physical condition, the defendant paid the plaintiff sick benefits for his illness in June, 1899; permitted him to remain in the association thereafter, and continued to receive dues •from him down to the time of his illness in question, which occurred in August, 1899. This conduct on the part of the defendant, with full knowledge of the falsity of the statements in plaintiff’s application for admission into the society, precludes the defendant from now availing itself of the defense interposed in this action. McCormick v. Cath. Relief & Benefit Assn., 56 N. Y. Supp. 905.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

Beekmak, P. J., and Giegerich, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.