Koeth v. Knights Templars & Masons Life Indemnity Co.

37 A.D. 146, 55 N.Y.S. 768

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1899
• Status: Published

Opinion

Follett, J.:

January 14, 1896, sections 1 and 2 of the so-called constitution of ■the defendant were duly amended, by which it is asserted by the defendant that the contract between it and the insured was amended in an important particular. On the contrary, it is contended by the plaintiff that an amendment of the constitution duly adopted according to the provisions of the original t constitution, did not affect outstanding policies. The defendant offered to show that there were no votes cast in opposition to the proposed amendment, which ivas excluded on the plaintiff’s objection, and that Augustus M. Koeth voted in favor of the amendment, which was excluded on the plaintiff’s objection'. To these rulings the defendant excepted. These rulings were error. It was competent for the defendant to show that the insured expressly assented January 14, 1896, to a change of the contract existing between him and the defendant as to the manner of giving notices of assessments and when such assessments became payable.

For this error the defendant’s exceptions should be sustained and a new trial ordered, with costs to the defendant to abide the event.

All concurred, except Ward, J., not voting.

Defendant’s exceptions sustained and a new trial ordered, with costs to the defendant to abide the event.