(dissenting.) This is an appeal from a judgment of the county court affirming a judgment recovered by the plaintiffs before a justice of the peace. The action is brought against the defendants, as directors or managers of the National Stock Owners’ Mutual Benefit & Indemnity Society, upon a certain certificate or guaranty policy of insurance issued to plaintiffs by said society, by which it insured the life of a certain bay horse, “Tom,” belonging to plaintiffs. The agreement of the certificate is to pay plaintiffs the proceeds of an assessment of 1 per cent., to be levied on all as members of class A, not to exceed $100. One of the provisions of the certificate is as follows: “As this society is purely mutual, the payment of assessments is not obligatory, but is the voluntary contribution of its members.” Another is that the society agrees to deposit in the post-office a notice of the assessment, directed to each certificate holder, etc. The last provision is: “It is distinctly understood that the directors of this society, either individually or as a body, shall not assume any liability personally by reason of this certificate.” The society was incorporated under chapter 267, Laws 1875, and the alleged liability is under section 8. The first question arises on the provision last cited, .declaring that the directors shall not assume any personal liability by reason of the certificate. I see no reason to doubt the validity of that provision. It was competent for the plaintiffs, themselves members of *149this mutual society, to make such agreement as they pleased, and to waive any right given to them by the statute. Phyfe v. Eimer, 45 N. Y. 102. This is not a question as to the validity or invalidity of by-laws. It is simply a question whether a person may not waive a right which is given him by statute. The liability imposed on directors by the statute is for the benefit solely of persons contracting with the company. No rule of public policy is violated when such persons waive that liability. The plaintiffs could release the defendants from liability after the death of the horse. We see no reason why they might not before. The case of Richardson v. Thurber, 104 N. Y. 606, 11 N. Y. Rep. 133, has no application. That simply decided that the neglect in an assignment to provide for the statutory preference to employes did not make the assignment void, but that the statute qualified the assignment. It is not suggested that an employe could never voluntarily release his right to a preference. But it is said by plaintiffs that it was the duty of the society to make an assessment, and that the defendants are liable under section 8, because this was not done. Passing the previous objection, (which applies to this agreement also,) I may notice that the alleged liability under section 8 is for “debts” payable one year from the time they shall have been contracted.” These words do not include the obligation of the society to make an assessment. That is a duty, not a debt. It is not a thing payable, but a thing to be performed. The complaint does not charge defendants with neglecting to perform the duty of making an assessment, but with the failure to pay a debt of the society arising on the certificate of insurance and the death of the horse. As a matter of fact, it is testified that there was an assessment in March, 1885, after proof of the loss of the horse, though the plaintiffs do not remember receiving notice thereof. Further, if the defendants neglected their duty in making this assessment, it does not appear that any damage was caused; for it is especially provided in the certificate of insurance that “the payment of assessments is not obligatory, nor is the voluntary contribution of its members.” It is impossible to infer, therefore, that the plaintiffs have suffered any loss. They themselves can request the members to contribute to compensate plaintiffs for their loss. The assessment, if made, would be nothing more than what they can do. By the terms of the certificate, the assessment imposed no legal duty on the members. The truth is that the parties to the certificate seem to have intended that no one should be liable for anything; and they have succeeded, except as to the cost of litigation. There are many other matters discussed at length and with ability by the counsel on each side, but it seems to us unnecessary, in the view we have taken, to express any opinion on such matters. I think the judgments of the county court and of the justice of the peace should be reversed, with costs against plaintiffs.