The case shows that the defendant issued a certificate of membership to one J. F. Dennis. There were rules and conditions annexed to the certificate which were a part of the contract. Whenever a death should occur, the member holding the certificate was required to pay an assessment. The rules required that members should within thirty days after mailing of a notice of an assessment pay the same, and if the assessment should not be received by the company within that timé, the contract should lapse and be void; An assessment was made and notice was mailed to this member and he did not pay within the thirty days. On the twenty-fourth day after the notice was mailed the assured was stricken suddenly with apoplexy. *340He was rendered unconscious instantly and so remained, entirely unconscious until his death, which occurred on the 19th of March, 1886. If this were all, there would be no question. The contract would be at an end because the Court of Appeals has decided that insanity did not excuse the non-performance of the condition. (Attorney General v. The N. A. Life Ins. Co., 82 N. Y., 190.) The rule however which creates the annulment of the contract for non-payment of assessment also provides that “ for valid reasons to the officers of the association (such as a failure to receive notice of an assessment) he (the defaulting member) may be reinstated by paying assessment arrearages.” The death of the member is not ijnportant. Whatever right he had if living ennured to his beneficiary after his death. (Wheeler v. The Connecticut Mutual Life Ins. Co., 82 N. Y., 543.)
What right would the member have had if he had recovered his reason on the day he died. In the first place the words were intended to be operative. The defendant obtained the premiums dr agreement to pay assessments upon them. They assured the members that if a valid reason was furnished for the default it should not be conclusive. The use of the restrictions as to the validity of the excuse to the officers of the company did not mean to make them sole arbiters of the validity of the reason. The company illustrate by citing an instance of a good excuse by the term “ such as a failure to receive 'notice of an assessment.” If an assessment notice had not been received without the fault of the member, can it be doubted but that the officers were bound to acknowledge it and reinstate the member .upon payment of arrearages ? The company say that is a good excuse and impliedly say that other good reasons for the default must be acknowledged also. The Court of Appeals have decided that a discretion given to trustees is not personal. (Hull v. Hull, 24 N. Y., 647; The Duplex Boiler Co., v. Garden, 101 id., 387.)
Is the reason assigned a valid reason under the contract ? There can be no doubt of this fact. The assessed had thirty days and before he paid the assessment he was rendered powerless by sudden calamity — his intent to pay is manifest by numerous previous payments. This was the construction put on the rule by the defendant. They again, after he was unconcious, notified the member of the *341forfeiture for non-payment and that the contract might be renewed: if in good health. This condition, in respect to good health, is not' in the rule and the officers had no right to add it to the rule. If a: valid reason existed for the default the member must be reinstated, because of the valid reason for the default and not because he had a valid reason and was in good health. The rule, as created by the company in this respect, would exclude cases where it was vital that they should be included in the contract. If the good reason was rejected in cases of ill health or death the insured will lose a real value in the contract. If members become sick or die the policy is at an end, no matter how completely the default may be. excused. This would make a very unfair contract, not within the words of the rule and one which the company would be unwilling to print in its rules. We, therefore, think that the validity of the reason assigned should have been submitted to the jury. The proof shows that the beneficiary at once tendered the back arrearages to the company. On the thirty-first of March the defendant repudiated their liability, and on the seventh of April reiterated their refusal to be bound by the policy by denying all liability under it. A formal tender was made early in May, 1886, accompanied by proof of death. The plaintiff has succeeded by assignment to the wife’s rights. The plaintiff is entitled to recover, therefore, if the wife and beneficiary was entitled.
The judgment should, therefore, be reversed, and a new trial granted, costs to abide event.
Pratt, J., concurred.