Hardin, P. J.
Plaintiff is entitled to have the most favorable inferences deducible from the evidence and conflicts in the evidence resolved in her favor while reviewing the motion for nonsuit. Weil v. Railroad Co., 119 N. Y. 153, 23 N. E. Rep. 487. Whether the death ensued from injuries covered by the provisions of the policy, upon the evidence produced, was a question for the jury to determine.
2. Apparently the critical and important question in the case arises upon the effect to be given to the paper signed by the deceased on the 13th day of April, 1889, which was in the following words:
“Received from the Manufacturers’ Accident Indemnity Co. of Geneva, NY., the sum of twenty-five dollars, ($25,) being in full satisfaction and final settlement of any and all claim I now have or may have against said company for loss resulting from injuries received on the 8 day of April, A. D. 1889, under my policy No. 12,157, which is hereby surrendered. Dated at Binghamton, in the state of New York, this 18 day of April, A. D. 1889.
“ W. A. Martin, Claimant.
“Now 28 Lewis St., Binghamton, N. Y., residence.
“C. L. King, Witness.”
When the paper was executed it was a printed blank, except the words and figures given above in italics.
King, the general agent of the defendant, who witnesses the paper, was called as a witness in behalf of the defendant, and, against the objection and exception of the plaintiff, he was permitted to give a conversation held [312]*312with the deceased on the 13th of April, when the paper was executed. It appears by that conversation that the deceased and the witness held a discussion as to the extent of the injuries to the thumb of the deceased, and as to what sum would be a suitable compensation therefor, and, after an intimation on the part of the witness that he would give $10 or $15, deceased declared he would not take it, and the witness King finally testifies as follows: “I says to him finally, in substance: Mr. Martin, what will you take and settle this matter? tell me. I am here with authority to settle with you.’ He says: 1 will take one week; that is, $25.’ Isays: ‘ Yes,’ I says, ‘ to end all this discussion, I will pay you;’ and drew out this application,—this receipt.” The witness testifies further that he gave his check for $25, and that the deceased signed the paper; and the witness adds: “The deceased looked at it, and says, • What does that mean by surrendering my policy.’ I says, * It is the usual course when we settle with a man before he recovers from an injury, and your reinstatement depends on the secretary; that is nothing I have anything to do with.’ He signed the receipt, and I gave him my check, and I left the office. The whole talk I can’t give. I was there perhaps an hour and a half. ” The witness further testified that, in answer to some question put to him by the deceased in regard to the surrender of the policy, he replied: “I. says: ‘It is customary to send that to the company with the receipt. It is not here.’ I didn’t consider it important, and did not send for it, and did not get it. * * • * The policy wasn’t there. I says, * This surrender is sufficient, and without going after the policy or getting it. ” The defendant called one Demeree as a witness, who was present at a portion of the interview which was had between King and the deceased, and he testifies: “Mr. King didn’t say that he would pay ten or fifteen dollars, nor make any offer while 1 was there. Mr. Martin didn’t say that he would call it one week while I was there. Neither Mr. Martin nor Mr. King made any offer while I was there. 1 saw no check given nor receipt signed. * * * When I left the office I left Mr. Martin and Mr. King negotiating and talking about the matter.” The plaintiff called Daniel E. Comstock, who testified to a conversation he had held with King, as to which conversation the witness says: “Mr. King says: ‘ I heard Mr. Martin received an accident, and I came right around, and have settled for a weekly indemnity, and have paid him a check for $25, and he requested Mr. Martin to show me the check, which he did.’ I think it was Mr. King’s individual check for that amount, and the settlement seemed very satisfactory, and there was nothing said about the cancellation of the policy. ”
We think the evidence warranted an inference that the $25 was paid in satisfaction of the loss sustained by the injuries of April 8th, and that the evidence warrants an inference or finding that the payment was made exclusively, for such purpose, and that no part of the sum of $25 was paid to reimburse the deceased for the premium paid theretofore to the defendant, or for the purpose of obtaining a surrender of the policy. Indeed, the language of the receipt is that the $25 is in satisfaction of “any and all-claim I now have or may have against said company for loss resulting from injuries received on the 8th day of April, A. D. 1889.” Ramsden v. Hylton, 2 Ves. Sr. 310. In Van Nest v. Talmage, 17 Abb. Pr. 99, it was held that “a receipt or release may be avoided by proof that it was obtained without consideration or by misrepresentation, or that it had been rescinded by agreement.” If the receipt is construed in the light of the evidence now mentioned, and the facts and circumstances surrounding the parties at the time of.the execution thereof, the conclusion is reasonable that the money paid by the defendant was for the purpose of satisfying the claim or liability which arose by reason of the injuries of the 8th of April. We think the words “hereby surrendered” were inserted without any consideration being paid therefor. Brick v. Campbell, 122 N. Y. 337, 25 N. E. Rep. 493. There was no physical surrender of the [313]*313policy, the same having been retained by the assured, or the beneficiary named therein, and held by them, or one of them, at the time of the death. This case is distinguishable from Train v. Insurance Co., 62 N. Y. 602, as in that case there was an actual delivery of the policy; a physical surrender of it by the party solely interested therein to the agent; and the acceptance of it by him as agent of the Andes Company, with the intention on the part of both that it should no longer “be a contract between the plaintiff and the company, ” and that by a party solely interested in the. ownership of the policy. We also think this case is distinguishable from Crown Point Iron Co. v. Ætna Ins. Co., 6 N. Y. Supp. 602, as in that case the plaintiff had actually surrendered the policies, and by its decisive act “put the policies intentionally out of the plaintiff’s possession,” and no question was made in that case but what the plaintiff was the sole owner of the policy, and the sole party interested therein.
Again, by the application that was made to the defendant, it was expressly requested to make the certificate or policy payable in case of death by accident, under the provisions of the certificate, to Eliza A. Martin. By the terms of the policy it was provided that, if death should be “effected through external, violent, and accidental means, * * * this company does covenant, promise, and agree to pay to Eliza A.
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Hardin, P. J.
Plaintiff is entitled to have the most favorable inferences deducible from the evidence and conflicts in the evidence resolved in her favor while reviewing the motion for nonsuit. Weil v. Railroad Co., 119 N. Y. 153, 23 N. E. Rep. 487. Whether the death ensued from injuries covered by the provisions of the policy, upon the evidence produced, was a question for the jury to determine.
2. Apparently the critical and important question in the case arises upon the effect to be given to the paper signed by the deceased on the 13th day of April, 1889, which was in the following words:
“Received from the Manufacturers’ Accident Indemnity Co. of Geneva, NY., the sum of twenty-five dollars, ($25,) being in full satisfaction and final settlement of any and all claim I now have or may have against said company for loss resulting from injuries received on the 8 day of April, A. D. 1889, under my policy No. 12,157, which is hereby surrendered. Dated at Binghamton, in the state of New York, this 18 day of April, A. D. 1889.
“ W. A. Martin, Claimant.
“Now 28 Lewis St., Binghamton, N. Y., residence.
“C. L. King, Witness.”
When the paper was executed it was a printed blank, except the words and figures given above in italics.
King, the general agent of the defendant, who witnesses the paper, was called as a witness in behalf of the defendant, and, against the objection and exception of the plaintiff, he was permitted to give a conversation held [312]*312with the deceased on the 13th of April, when the paper was executed. It appears by that conversation that the deceased and the witness held a discussion as to the extent of the injuries to the thumb of the deceased, and as to what sum would be a suitable compensation therefor, and, after an intimation on the part of the witness that he would give $10 or $15, deceased declared he would not take it, and the witness King finally testifies as follows: “I says to him finally, in substance: Mr. Martin, what will you take and settle this matter? tell me. I am here with authority to settle with you.’ He says: 1 will take one week; that is, $25.’ Isays: ‘ Yes,’ I says, ‘ to end all this discussion, I will pay you;’ and drew out this application,—this receipt.” The witness testifies further that he gave his check for $25, and that the deceased signed the paper; and the witness adds: “The deceased looked at it, and says, • What does that mean by surrendering my policy.’ I says, * It is the usual course when we settle with a man before he recovers from an injury, and your reinstatement depends on the secretary; that is nothing I have anything to do with.’ He signed the receipt, and I gave him my check, and I left the office. The whole talk I can’t give. I was there perhaps an hour and a half. ” The witness further testified that, in answer to some question put to him by the deceased in regard to the surrender of the policy, he replied: “I. says: ‘It is customary to send that to the company with the receipt. It is not here.’ I didn’t consider it important, and did not send for it, and did not get it. * * • * The policy wasn’t there. I says, * This surrender is sufficient, and without going after the policy or getting it. ” The defendant called one Demeree as a witness, who was present at a portion of the interview which was had between King and the deceased, and he testifies: “Mr. King didn’t say that he would pay ten or fifteen dollars, nor make any offer while 1 was there. Mr. Martin didn’t say that he would call it one week while I was there. Neither Mr. Martin nor Mr. King made any offer while I was there. 1 saw no check given nor receipt signed. * * * When I left the office I left Mr. Martin and Mr. King negotiating and talking about the matter.” The plaintiff called Daniel E. Comstock, who testified to a conversation he had held with King, as to which conversation the witness says: “Mr. King says: ‘ I heard Mr. Martin received an accident, and I came right around, and have settled for a weekly indemnity, and have paid him a check for $25, and he requested Mr. Martin to show me the check, which he did.’ I think it was Mr. King’s individual check for that amount, and the settlement seemed very satisfactory, and there was nothing said about the cancellation of the policy. ”
We think the evidence warranted an inference that the $25 was paid in satisfaction of the loss sustained by the injuries of April 8th, and that the evidence warrants an inference or finding that the payment was made exclusively, for such purpose, and that no part of the sum of $25 was paid to reimburse the deceased for the premium paid theretofore to the defendant, or for the purpose of obtaining a surrender of the policy. Indeed, the language of the receipt is that the $25 is in satisfaction of “any and all-claim I now have or may have against said company for loss resulting from injuries received on the 8th day of April, A. D. 1889.” Ramsden v. Hylton, 2 Ves. Sr. 310. In Van Nest v. Talmage, 17 Abb. Pr. 99, it was held that “a receipt or release may be avoided by proof that it was obtained without consideration or by misrepresentation, or that it had been rescinded by agreement.” If the receipt is construed in the light of the evidence now mentioned, and the facts and circumstances surrounding the parties at the time of.the execution thereof, the conclusion is reasonable that the money paid by the defendant was for the purpose of satisfying the claim or liability which arose by reason of the injuries of the 8th of April. We think the words “hereby surrendered” were inserted without any consideration being paid therefor. Brick v. Campbell, 122 N. Y. 337, 25 N. E. Rep. 493. There was no physical surrender of the [313]*313policy, the same having been retained by the assured, or the beneficiary named therein, and held by them, or one of them, at the time of the death. This case is distinguishable from Train v. Insurance Co., 62 N. Y. 602, as in that case there was an actual delivery of the policy; a physical surrender of it by the party solely interested therein to the agent; and the acceptance of it by him as agent of the Andes Company, with the intention on the part of both that it should no longer “be a contract between the plaintiff and the company, ” and that by a party solely interested in the. ownership of the policy. We also think this case is distinguishable from Crown Point Iron Co. v. Ætna Ins. Co., 6 N. Y. Supp. 602, as in that case the plaintiff had actually surrendered the policies, and by its decisive act “put the policies intentionally out of the plaintiff’s possession,” and no question was made in that case but what the plaintiff was the sole owner of the policy, and the sole party interested therein.
Again, by the application that was made to the defendant, it was expressly requested to make the certificate or policy payable in case of death by accident, under the provisions of the certificate, to Eliza A. Martin. By the terms of the policy it was provided that, if death should be “effected through external, violent, and accidental means, * * * this company does covenant, promise, and agree to pay to Eliza A. Martin, wife, if surviving, if not, to the legal representative of the member, the sum of $5,000 from the benefit fund of the company at the time of said death.” On the 13th of April the policy was in life, and the premium thereon had been paid sufficient to keep it alive until another payment or premium should become due and-payable, on June 9th. The beneficiary, therefore, had an interest in the covenant of the company which had been paid for. Lockwood v. Bishop, 51 How. Pr. 224. It is not claimed that she ever assented to a surrender of the same, or that she in any manner canceled her interest in the policy in question; nor does the evidence show any act on her part which can be construed to operate as a surrender of her interest in the policy; besides, on the 9th of May, the defendant, when it issued its “official notice,” treated the policy as valid and binding. In re Booth, 11 Abb. N. C. 145; Cook, Ins. p. 138, and cases cited.
Chase, the secretary of the company, and who, by evidence, is shown to be the principal manager of the company, it must be assumed had either signed or caused to be signed the “official notice” whicli was used, and it must be assumed that he was acting within the scope of his authority when he sent, or caused to be sent, the “official notice” to the assured. According to the testimony of ICing, the secretary had the power to cause a reinstatement of a member, even after a valid surrender of a policy. In article 2 of the by-laws, it is provided that, if a member shall fail to remit the amount of the assessment within the time specified in the notification, he “may be reinstated by the secretary under such conditions as he may impose. ” It seems that the object of this company is to “collect and accumulate a fund to be held in use for the mutual benefit and protection of its members or their beneficiaries.” Such is the declared object in article 1 of the by-laws. It would seem that the defendant not only covenanted to pay such sum of moneyas the assessment would yield up to the extent of $5,000, but it undertook to act as trustees, not only for the members, but for the beneficiaries mentioned in its policies. This circumstance is not to be overlooked in considering the interest which the plaintiff had in the policy on the 13th of April. Plaintiff has placed her right to recovery by reason of the injury of April 27th, and not by reason of the injury of April 8th. Whether the death resulted from the injury of April 8th, or whether that contributed to the death, were questions which were not determined by the learned judge at the circuit, and are not directly brought in review; and probably, when this case shall be tried again, questions in that regard will be for the jury to determine. Peck v. Association, 5 N. Y. Supp. 215. We think the plaintiff’s case is distinguishable from Bacon v. Associa[314]*314tion, 123 N. Y. 304, 25 N. E. Rep. 399, as in that case it appeared the death of the insured was caused by malignant pustule, and it was therefore held that the insured died from a disease, within the meaning of the policy.
3. Heither the notice of motion made upon the judge's minutes, nor the order entered thereon, specify any grounds, according to the well-settled practice of this court. The same cannot, therefore, be reviewed, and the appeal, therefore, must be dismissed. Hinman v. Stillwell, 34 Hun, 178. Appeal from the order dismissed. Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.