The action was brought to recover $1,000, the amount of a death benefit certificate issued to George Klein, husband of the plaintiff, who was named as beneficiary therein.
This is the second trial of the case. Upon the first trial plaintiff recovered a judgment which was reversed by this court. 92 Misc. Rep. 216.
The complaint sets forth that defendant is a corporation, etc.; the issuing of the certificate by defendant to George Klein, plaintiff’s husband; the compliance by deceased, George Klein, with all the requirements thereof; the death of George Klein, and that he did not die a suicide.
The answer denies that George Klein, the certificate holder, did not die a suicide; that plaintiff became entitled to the payment of $1,000; that due notice of the death of George Klein was given and the payment of the $1,000 demanded;' and also denies the allegation of waiver set forth in the complaint.
After a trial the jury brought in a verdict for the plaintiff. Upon a motion of defendant the court set aside the verdict and ordered a new trial.
The appellant raises several questions in his brief which we deem it unnecessary to consider inasmuch as the former trial settled most of them.
The question as to whether George Klein committed suicide seems to have been decided by the jury in favor of plaintiff.
*224This court has held on appeal from the judgment in the former trial that the false representations alleged in the former trial invalidated the contract between Klein and the defendant and, inasmuch as the evidence clearly establishes that those representations were actually made, the only question in the present case is one of waiver. This question was submitted to "the jury who found as matter of fact that there was a waiver. This finding was set aside by the court and the court decided that no waiver was shown. Klein died December 22, 1913. The assessment became due December thirtieth. The assessment was paid by the plaintiff and paid over to the supreme council in bulk with other moneys before January 15, 1914. December twenty-third or twenty-fourth, and before the assessment was paid, plaintiff stated to the recorder of the subordinate council, who had full authority in the matter, that George Klein was a bartender and had been in the liquor business for some time. It is true the notice of the death and the fact that Klein was in the liquor business did not actually reach the supreme council until January 22, 1914. The money for the assessment, however, had already been sent, to wit, about January fifteenth. The knowledge of the subordinate lodge was the knowledge of the supreme council. The actual receipt of the money by the subordinate lodge was the receipt of the supreme, council and the payment of the assessment to the subordinate lodge was a good payment.
The supreme council grants the beneficial certificates, receives the money and makes payments.
The subordinate council is the duly accredited agent of the supreme council.
The plaintiff was not obliged to give the knowledge that Klein was in the liquor business directly to the supreme council nor were the premiums required to *225be paid directly to the supreme council. As before stated, the subordinate council was the accredited agent for these purposes (Anderson v. Supreme Council, Chosen Friends, 135 N. Y. 107), and anything it did or knowledge it obtained wiithin its designated powers bound its principal. The point raised by the respondent, that under the constitution of the defendant providing that “ no subordinate council or any of its officers or members shall have power or authority to waive any of the provisions of the constitution and by-laws of this association,” has no application. The subordinate council did not waive any of the association’s constitutional provisions or by-laws. It simply performed certain functions clearly within its powers and the necessary consequences of such performance, the law says, constituted a waiver.
The policy of the law is to construe any act of affirmance of the contract with knowledge of the facts by the party entitled to avoid it to be a waiver.
The case of McCormick v. Catholic Relief & Ben. Assn., 39 App. Div. 309, is directly in point. This case reviews all the prior cases upon the point r.aised here and also approves of the act of the trial court in submitting the question of waiver to the jury.
The case of Walker v. Phœnix Ins. Co., 156 N. Y. 633, also holds the question is a proper one for the jury.
Forfeiture of any form of contract of life insurance is not favored by the courts. Slight acts of the insurer which recognize in any way the existence of the policy or contract as still in force will constitute a waiver. Holleran v. Prudential Ins. Co., 172 App. Div. 634.
The order should be reversed and the verdict reinstated, with costs.
Order affirmed, with costs.