Smith v. Chapter General of America

Burr, J.: Defendant is a corporation of a fraternal and benevolent character. This action is brought to recover the. face value of an “ endowment certificate ” issued to one Michael Smith. Defendant’s constitution provides, among other things, that “ Applications [533] shall not be received from barkeepers or other persons who at any time sell or serve intoxicating liquors to be drunk on the premises.” At the time when Michael Smith applied for membership in such corporation he was the proprietor and owner of a saloon at 91 Myrtle avenue, Brooklyn, had obtained a liquor tax certificate which issued in his own name, bought merchandise in the way of liquors, cigars, soda waters, mineral waters and other articles, kept the same on the premises, and sold the same for profit. He continued so to do down to the date of his death. On occasions he himself served to his customers intoxicating liquors to be drunk upon the premises. This condition of membership was one which defendant had a right to make. (Graves v. Knights of Maccabees, 199 N. Y. 397.) At the time when Smith made application for membership he stated that he was a “ merchant.” His application’contained a provision that any false statement, concealment or evasion of facts contained in his application should render the certificate void. The answer to the question respecting his occupation, when read in connection with the provision of the constitution, was clearly an evasion of facts. But beyond that the situation was not precisely the same as though he had entered into the business after obtaining his certificate. Tlie business in which he was engaged made him ineligible for membership, and that fact he must have known. There is no question of waiver or estoppel in- this case. Whether a subordinate encampment could waive a constitutional provision so as to bind the general body, it is not necessary for us to determine, for there is no evidence that the fact of his ineligibility, or that the answer in his application for membership was evasive, was known to the members of the encampment, still less to the members or officers of the general body. We do not think defendant is precluded from this defense by the form of its answer. Although the answer by failing to deny one of the allegations of the complaint may seem to admit that Michael Smith was duly elected a member of the order, and that in 1905 the certificate was in full force and effect, this admission must be read in connection with and deemed qualified by the facts elsewhere set up in the answer, showing his ineligibility to membership, and that the certificate was obtained by an evasive statement of facts. Without passing upon the other questions raised in the brief of [534] appellant, we think the judgment appealed from should be reversed and a new trial granted, costs to abide the event. Jehks, P. J., Thomas, Cabe and Woodwabd, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event.