This action was brought to recover the amount due on a benefit certificate issued by the defendant *Page 189 to Jacob Loeb which was payable to the plaintiffs, his daughters, upon his death. The complaint alleged the admitting of Jacob Loeb to membership in the defendant's association in 1890 and that he continued to be such member in good standing until the 14th day of September, 1896, at which time he was suspended from the order by reason of his failure to pay assessment No. 231, and that thereupon he made application to be reinstated, but this was refused, and that subsequently and on the 27th day of July, 1897, he died. The complaint further alleges that the suspension was unlawful for the reason that the assessment No. 231 was duly tendered to an authorized agent of the defendant within the thirty days allowed by the constitution and laws of the council to make such payments, and that the refusal of the council to reinstate him was unjust, illegal and in violation of the constitution and laws of the council. The relief demanded was that the suspension of Jacob Loeb and all proceedings held thereunder be declared void and of no effect and that he be declared a member in good standing at the time of his death and that the defendant pay to the plaintiffs the $3,000, with interest, provided for in the certificate.
The answer, in substance, denied the tender of the amount of the assessment No. 231 and alleged that his suspension was, therefore, lawful and that he was properly refused reinstatement. The case was noticed for trial upon the equity side of the court and was finally brought to trial on the 13th day of November, 1907. Upon the trial evidence on behalf of the plaintiffs was offered to the effect that Henry Loeb, a brother of the plaintiffs, who was also a member of the council, went to the office of the company on the 22d day of August, 1896, and delivered in the office of the defendant to Mr. Chamberlain, the collector of assessments, and left with him a check of Jacob Loeb, his father, and another check of his own for the purpose of paying his father's and his own assessments, No. 231; that three or four days thereafter he received a receipt for his own assessment, and some time thereafter, the precise date not being given, his father's check was returned to him *Page 190 with notice that his father had been suspended; and that he returned the notice and his father's check to him; that subsequently he saw Mr. Chamberlain, had a talk with him, and that Chamberlain told him in substance that if his father would make application for reinstatement it would be all right. He thereupon told his father of the conversation with Chamberlain, and subsequently his father made the application for reinstatement alleged in the complaint, but it was refused. On behalf of the defendant Chamberlain was sworn as a witness, and testified in substance that he could not recollect of Henry Loeb's calling upon him on the 22d day of August; that it was possible that he saw him on that date, but to the best of his knowledge and belief and remembrance he received Henry's check by mail on the 24th of the month instead of the 22d, but he had no recollection of receiving his father's check, and to the best of his knowledge and belief he did not receive it. At the conclusion of the evidence the defendant moved for the dismissal of the complaint upon the ground "that the testimony is that the suspension originally was improper, and upon proof that assessment 231 was paid. That being so, the plaintiffs have abandoned that part of the complaint which alleges that he should have been reinstated if the examination had been proper. It brings us down to the common-law issue, that if the issue in this action is only whether or not assessment 231 was paid or was not paid we might have tried this case before a jury in the Trial Term long ago. So that on the proof in the case there is no reason this court should undertake to decide the case and the plaintiffs should be remitted to their action at law." Thereupon the trial court granted the defendant's motion, stating in its opinion that "The case was placed upon the equity calendar and upon the trial the defendant made the point that the plaintiffs had failed to establish by proof any ground for equitable relief and that, having abandoned that part of their complaint they should be remitted to their action at law. The plaintiffs did not acquiesce in this position and ask to be sent to the law side of the court for trial, *Page 191 but insisted upon their right to judgment after trial on the equity side before the court without a jury. Under these circumstances, it seems to me plain that the plaintiffs, having failed to establish a cause in equity should suffer a dismissal of their complaint." Thereupon, the court made findings of facts, substantially following the allegations of the complaint, to the effect that Jacob Loeb was suspended, made application for reinstatement and that it was rejected and that in July following he died. And then found as a fact: "Sixth. That this suit is brought by Carrie and Jennie Loeb aforesaid, for a decree in equity setting aside the declaration and acknowledgment by Jacob Loeb in his lifetime of his suspension from membership in Manhattan Council No. 217 and his application for reinstatement as a member, on the ground that the decedent signed the paper through misunderstanding and that he be restored to membership." And as conclusions of law the court found: "I. That there was no evidence presented to me of any misunderstanding, fraud, deceit nor mutual mistake inducing Jacob Loeb to acknowledge his suspension embraced in his application aforesaid for reinstatement. II. That at the time of the death of Jacob Loeb he was not a member of Manhattan Council No. 217 of the Royal Arcanum and not a member in defendant society, and not entitled to participate in any benefits incident to such membership. III. I direct accordingly that final judgment be entered herein in favor of defendant dismissing the plaintiffs' complaint on the merits with costs to defendant to be taxed and inserted therein." Exceptions were filed by the plaintiffs to the sixth finding of fact and to the conclusions of law.
It will be observed that in the sixth finding of fact the court has carefully limited the finding to the issue raised with reference to Loeb's reinstatement as a member of the council and has made no finding upon the other issue in the case to the effect that the suspension was unauthorized for the reason that Loeb had tendered the amount of his assessment within the thirty days allowed for its payment. That issue was left open undetermined, evidently intentionally, for it distinctly appears *Page 192 both from the opinion of the court, to which we have referred, and to the motion of the defendant for a dismissal of the complaint, that the only testimony given in the case was to the effect that the original suspension was improper, thus raising the common-law issue as to whether or not the assessment was paid.
I am of the opinion that the trial court erred in dismissing the complaint. The case of Mittenthal v. Rabinowitz (60 App. Div. 138), which the court appears to have followed, is not, in my judgment, an authority upon the question. In that case the question arose upon a motion to restore a case to the day calendar on the ground that it should not originally have been placed on the Special Term calendar. It is true that the court, in disposing of the motion, did state that unless the plaintiff succeeded in establishing facts which would entitle him to equitable relief his complaint must be dismissed. The judge, however, followed this expression with the statement, "However, that question is not now before us. All that we now decide is that he is entitled to have his case restored to that calendar if he insists upon it."
In the case of Thomas v. Schumacher (17 App. Div. 441, 447; affirmed in 163 N.Y. 554, on opinion below) INGRAHAM, J., says: "The defendants also take the objection that to enforce this obligation an action at law was necessary and not an action for an accounting in equity, and that the plaintiffs have a complete and adequate remedy at law against these defendants and no standing in equity to maintain this action. If this point, however, is well taken, it would not justify a dismissal of the complaint. Upon the facts proved, the plaintiffs, if the owners of the demand against the defendants, would be entitled to a judgment; and the fact that they had demanded the wrong relief in their complaint, or demanded relief to which they would not be entitled, would not justify the court in dismissing the complaint. If they brought the action to trial as an equity case, when upon the facts alleged the plaintiffs were only entitled to a common-law judgment, and the defendants insisted that the action should be tried before a jury, then, upon a demand that the case be sent to a *Page 193 jury for trial, the court would be bound to so direct; or, if at the end of all the testimony the court should be of the opinion that it was an action at law and not in equity, the court could then refuse the equitable relief and send the action to be tried at the Trial Term before a jury. There was no reason, however, why the plaintiffs should be turned out of court, under our system of practice, because, though they alleged facts which entitled them to relief, they asked for the wrong relief, or brought the case on for trial at the wrong term of the court." (Rogers v. Straub, 75 Hun, 264, 266; Ostrander v. Weber,114 N.Y. 95, 102; Town of Metz v. Cook, 108 N.Y. 504, 507.) I, therefore, conclude that when the trial court became satisfied that the plaintiffs had abandoned the equitable issue raised by the pleadings and rested upon the issue that the assessment had been duly tendered and that Loeb was not in default the trial should have been suspended and the issue sent to the Trial Term of the court to be disposed of by a jury and that the plaintiffs should not have been turned out of court by having their complaint dismissed.
The judgment should, therefore, be reversed and a new trial ordered, with costs to abide the event.
GRAY, VANN and WERNER, JJ., concur with EDWARD T. BARTLETT, J.; CULLEN, Ch. J., and HISCOCK, J., concur with HAIGHT, J.
Judgment affirmed.