Mitterwallner v. Supreme Lodge Knights & Ladies of Golden Star

Appellate Terms of the Supreme Court of New York

Mitterwallner v. Supreme Lodge Knights & Ladies of Golden Star

86 N.Y.S. 786

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 23, 1904

StatusPublished

This text of 86 N.Y.S. 786 (Mitterwallner v. Supreme Lodge Knights & Ladies of Golden Star) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mitterwallner v. Supreme Lodge Knights & Ladies of Golden Star, 86 N.Y.S. 786 (N.Y. Ct. App. 1904).

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Opinion

GIEGERICH, J.

The action is brought to recover $250; being a balance alleged to be due upon a beneficiary certificate in the amount of $1,000, on which $750 had been paid. The defense of accord and satisfaction was attempted, but failed. The receipt given by the plaintiff at the time the $750 was received expressly stated that the amount was received “under protest.” The ■ answer further set up the defense of the suicide of the insured, and the existence of a by-law which provided for the payment of only 75 per cent, of the face of the policy, under the circumstances of this case. That the assured committed suicide was, we think, proven by the defendant sufficiently for the purposes of this.appeal.

The respondent’s counsel insists that, as the by-law was not enacted until after the deceased became a member of the society, it cannot be binding on the plaintiff, to cut off a right vesting before its enactment; but the language of the Court of Appeals in Shipman v. Protected Home Circle, 174 N. Y. 398, 405, 67 N. E. 83, 85, is directly adverse to such claim in a case like the present. It was there said:

“If we assume, therefore, that the original contract and by-laws were silent upon the subject of suicide by the insured while sane, the amended [787]*787by-law is valid, because there can be no such thing as a vested right to commit suicide, and for the further reason that it is nothing more than the written expression of a provision which the law had read into the contract at its inception.”

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed, and a new trial' ordered, with costs to the appellant to abide the event. All concur.

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GIEGERICH, J.

The action is brought to recover $250; being a balance alleged to be due upon a beneficiary certificate in the amount of $1,000, on which $750 had been paid. The defense of accord and satisfaction was attempted, but failed. The receipt given by the plaintiff at the time the $750 was received expressly stated that the amount was received “under protest.” The ■ answer further set up the defense of the suicide of the insured, and the existence of a by-law which provided for the payment of only 75 per cent, of the face of the policy, under the circumstances of this case. That the assured committed suicide was, we think, proven by the defendant sufficiently for the purposes of this.appeal.

The respondent’s counsel insists that, as the by-law was not enacted until after the deceased became a member of the society, it cannot be binding on the plaintiff, to cut off a right vesting before its enactment; but the language of the Court of Appeals in Shipman v. Protected Home Circle, 174 N. Y. 398, 405, 67 N. E. 83, 85, is directly adverse to such claim in a case like the present. It was there said:

“If we assume, therefore, that the original contract and by-laws were silent upon the subject of suicide by the insured while sane, the amended [787]*787by-law is valid, because there can be no such thing as a vested right to commit suicide, and for the further reason that it is nothing more than the written expression of a provision which the law had read into the contract at its inception.”

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed, and a new trial' ordered, with costs to the appellant to abide the event. All concur.

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Bluebook (online)

86 N.Y.S. 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitterwallner-v-supreme-lodge-knights-ladies-of-golden-star-nyappterm-1904.

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