The action was brought hy the plaintiff as the wife of .Morris Feierstein, deceased, to recover of the Supreme Lodge, Knights of Honor, upon a benefit certificate in which she was named as beneficiary to the extent of $1,000. The children of the deceased — but not of the plaintiff — were by order joined as defendants, they also claiming under the certificate, upon the ground that the plaintiff was not his lawful wife. The defense of the lodge was that the deceased came to his death by suicide and, therefore, under the by-laws, the policy lapsed and only the premiums paid were recoverable, and these should be paid to the children of Morris Feierstein and not to the plaintiff.
With respect to the defense that the plaintiff was not the lawful wife of the deceased, it appeared that she had, prior to her marriage with him, been married to another person living in Germany, and it was claimed that that marriage was still binding. Upon the trial proof was given to show that in the State of California, prior to her marriage to Morris Feierstein, the plaintiff had obtained a divorce from her former husband.
The defendants introduced in evidence the hy-law of the society relating to suicide, and the question was submitted to the jury, “ Did Morris Feierstein commit suicide,” which question was answered affirmatively, and thereupon judgment was entered in favor of the defendants and the plaintiff appeals therefrom.
There is testimony that some four months prior to' his death Feierstein had been detected in an attempt to commit suicide by inhaling gas, such testimony being that he had locked himself in a room where gas was escaping from a tube hanging down in front of him as he sat at a table or desk; that the room was full of gas and he was nearly overcome when those who had detected him knocked *55at his door, and after some delay were finally admitted by him, and they then opened the windows and brought him back to a full possession of his faculties. Further, it was testified that upon his death the deceased was- found in bed where there were no signs of disturbance, and there was a carbolic acid bottle beside him and his face and mouth were burned by carbolic acid and acid was in his mouth. A physician testified that carbolic acid burns the instant it touches the mucous membrane of the mouth, and that • one who took it by accident would at once be aware of it and reject it. The coroner, it appeared, found that the deceased had committed suicide.
Although important and leading authorities are cited as to the proof necessary to show suicide, and it is argued that the defendants had not conclusively shown that the deceased had himself taken the acid, much less that he had done so intentionally, and the question here presented is a close one, we think in this ease that it is a reasonable inference atid one justified by all the evidence that the •deceased had intended to and did commit suicide.
The certificate sued upon was issued January 3, 1896, and the by-law providing that no benefit would' be paid where a member had committed suicide, was not passed until the month of June, 1896. The plaintiff’s husband came t-o his death on July 30, 1896. Mo special reference was made upon the trial to the fact that the by-law concerning suicide was passed after the issuing of the certificate, the question whether the defense was a good one being raised for the first time on this appeal. The by-law was introduced without objection and the jury was permitted without exception to determine whether or not the deceased did commit suicide. Mow it is ai’gued that the trial was conducted and the case submitted to the jury and decided upon a wholly .erroneous theory, and that although no exceptions were taken, this court should grant a new trial.
. There can be no doubt that a mere reading of the by-law and of the certificate which had previously been issued shows that the amendment could not destroy the benefits which had been guaranteed to the plaintiff. The new regulation merely provided that “ the order will not pay the benefits of those members who commit suicide,” and thus it did not expressly state that past as well as future members were included. The rule of construction to be *56adopted is that a, by-law is not to be deemed retrospective unless its terms "exclude the interpretation that it was intended to be only . prospective in effect and applicable to circumstances thereafter arising. (Shipman v. Protected Home Circle, 66 App. Div. 449.) Under the certificate herein, the rights of the plaintiff had become vested before the by-law was passed, and, as. said in the recent. and in many respects similar case in this court of Roberts v. Cohen (60 App. Div. 262), “assuming that the grand lodge had power to pass-the by-law limiting the class of. beneficiaries, such by-law did not affect the certificate of Roberts (which was previously issued) * * * because it was not retroactive.” And in that case the principle was restated that “ rights will not be interfered with unless there are express words to. that effect.”
Here the by-law was received in evidence without objection or exception, and the case proceeded upon the theory that the defense of suicide was one properly' to be submitted to the jury. In other words, the defendant has been permitted to recover although upon principles' of law such recovery was not authorized. The case, therefore, is one wherein the discretion of the appellate tribunal, if it exists at all, to order a new trial where an erroneous theory has been followed and exceptions have not been taken, should in the interest of justice be exercised. To sustain this proposition, the appellant relies, among other cases, upon Roberts v. Tobias (120 N. Y. 1) wherein it was said: “ We do not question the power of that court (the General Term) to reverse for errors committed upon the trial, even though they are not raised by exceptions. It is the duty Of that court to examine the facts as well as law,- and if errors have been committed involving, the right of a party to recover, it may, in its discretion, grant a new trial.” And in another case cited (Whittaker v. D. & H. C. Co., 49 Hun, 400) it Was said “ When a case has been submitted at Circuit to a jury upon a theory which is wholly erroneous, the General Term has power; and it is its duty, to grant a new trial because of the erroneous instruction though an exception was not taken.”
We think, therefore, that for the error committed in admitting improper evidence to show that thé plaintiff could not recover and in submitting the case to the jury upon an entirely wrongful theory, the judgment appealed from should be reversed and a new trial *57ordered, upon payment of costs of the trial and of this appeal by the appellant.
Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.