(dissenting):
The defendant is a foreign corporation, organized under the laws of the State of Massachusetts, with its principal office or place of business in the city of Boston, in that State. In - legal effect, it seems to be a life insurance association, but the policies issued differ in some respects from the ordinary policies issued by life insurance companies. They are denominated certificates of membership. On the 3d day of August, 1883, this association issued and delivered to J. Fred. Dennis a certificate constituting him a benefit member thereof; and agreed, by its terms, to pay to Annie C. Dennis, his wife, after due proof of his death, a sum equal to the amount *342received from a death, assessment, not exceeding $5,000. That certificate was made and'issued subject to many conditions, and' among them are these:
“ Second: Upon the death of any member the said, party to whom this certificate is issued shall at once pay, if required, to its treasurer, an additional assessment of six dollars and seventy-five cents.
“ Third. The form of notice to and process of collection from each of the members of the above assessment above named shall be as follows: A notice shall be sent announcing such assessment, and the number thereof, to the last post-office address given to the association by each member; and if the assessment is not received within thirty days from the mailing of said notice, it shall be accepted and taken as sufficient evidence that the party has decided to terminate his connection with the association, which connection shall thereupon terminate, and the party’s contract with the association shall lapse and be void; but said party may again renew his connection with the association by a new contract made in the same manner as the first; or for valid reasons to the officers of the association (such as a failure to receive notice of an assessment), he may be reinstated by paying assessment arrearages.
“ Seventh. A failure to comply with the rules of said association, as to payment of assessments, * * * shall also render this certificate void.”
Subsequent to the issuance of the policy several assessments were levied upon the assured, and paid; and on the 13th day of February, 1886, an additional assessment of six dollars and seventy-five cents was levied upon him for the death of twelve members, and there is no dispute about the legality or propriety of such assessment. Notice of this assessment was mailed to Dennis, the assured, from Boston, on the 12th day of February, 1886, and was received by him and found among his papers after his death, but the assessment was never paid. On the 8th day of March, 1886, twenty-four days after the notice of assessment was mailed from Boston, Dennis, the assured, was stricken with apoplexy, and remained unconscious until the nineteenth day of March, when he died.
Proof of death was presented to the company, and a tender was made of the amount of the assessment, but payment was refused. The claim was then assigned to the plaintiff, who commenced this *343action for its recovery. When the cause was brought to trial' the complaint was dismissed, and the plaintiff has appealed. The action was prosecuted and sought to be maintained upon the theory that the assured in the policy was excused from the performance of the condition of his policy, requiring payment of his assessment in thirty days after mailing notice to him of the same, by the act of God, and we are, therefore, required to ascertain how far such contention can attain recognition.
The stroke of doom which prostrated the deceased and rendered him unconscious until bis death must be recognized as* the-- act- oh God, in the usual legal significance of that term.. It was* distinct* from inevitable accident, and arose from» natural causes^independent' of human agency. Sudden illness-and* death being;both inevitable,, have always been recognized as-acts of * God.- But inevitable'visitations are not accepted in law as-excuses- for the-failure- to- perform* contracts and conditions in all cases indiscriminately. When the contract or condition requires personal service, which can be rendered or performed only by the party personally, inevitable accident or the act of omnipotent. power, will excuse a failure of performance. (Wolfe v. Howes 20 N. Y., 197.) But where a party absolutely assumes the performance of a feasible and lawful contract or condition which may be executed and discharged by another, then no unforeseen contingencies will relieve him from the consequences of an omission of performance. (Dexter v. Norton, 47, N. Y., 62.) These principles have been deduced from a long and continuous line of authority, and have received frequent recognition and application by the highest court of our own State, and they are decisively against the contention of the plaintiff in this action. Neither the policy nor the condition in this case required the premiums or assessments to be paid by the assured personally, and they might both be paid by any other person in his interest. Neither his severe visitation nor his subsequent unconscious condition presented any obstacle to the performance of the condition by the payment of the last assessment by his wife, for whose benefit the insurance was effected, and the case seems to fall easily under the' authority of the case of Wheeler v. Connecticut Mutual Insurance Company (82 N. Y., 544).
The plaintiff also insists that the sudden deprivation of reason, and *344final death of the party assured, created .a valid reason for excusing ■the non-payment of the assessment, and reinstating the policy, but we cannot concur in that view. The valid reasons for reinstatement contemplated by the third condition are to be addressed to the officers of the association, and not to the courts. The nature of the reasons which may induce reinstatement by the officers are indicated to be such as a failure to receive notice of an assessment, and if such reasons prevail with the officers, the member may be reinstated.
The provision for reinstatement therefore presupposes an arrangement or ceremony which shall restore and revive the forfeited policy and continue the membership of the insured, and that cannot be accomplished after his death. It was designed to afford an opportunity for the presentation to the officers of the association, by a member whose policy had lapsed and become void, of equitable considerations and reasons whieh might induce a restoration and reinstatement to membership of the living member. Neither can we yield assent to the proposition of the plaintiff that the termination of the contract of membership was predicated upon the intention of the insured. The continuation of the membership depended upon the performance of the condition and not upon the intention to perform. A failure to comply with the rules respecting payment rendered the certificate void ipso facto. The condition of the policy quoted makes the omission to pay the assessment evidence of the intention of the party to withdraw from the association, and Stipulates for the termination of the.connection thereupon, and that -the contract of the party with the association shall lapse and be void. As, therefore, -there was in this case the evidence óf intention for' which both parties stipulated, coupled with the failure to pay, the -two events had transpired which wrought the forfeiture of the policy. [Respecting the statutes of the State of [Massachusetts, it is sufficient -to say the action is not prosecuted -under such statutes and the l’elief demanded is not founded upon them, but the action is based on the •policy and judgment is demanded for the full amount thereof.
The judgment and order appealed from should be affirmed, - ysdth costs. , .
Judgment and order denying new trial reverged .and hew trial, granted, costs to abide event.