Concededly the burden of going forward with the proof to establish the amount of one-half of one full assessment on each member of defendant order at the time of the death of the member, which occurred February 28, 1912, was upon the defendant. No such evidence was introduced. Defendant merely handed the Grand Secretary of the order certain unidentified papers, which appear to have assessments in 1909 and 1910, and was asked what the assess*933ment per member in class B as of the 1st of February, 1912, was, and answered:
“The assessment realized. $368.75 per death.”
Then followed this hypothetical question and answer:
“Q. So that, if Meyerson was a member of the order, and the order had assessed its membership for the payment of that death, it would have realized for the payment of one death claim how much? A. $368.75.”
This fell short of establishing that an assessment was levied, or, if not levied, what it would have realized as of February 28, 1912.
Moreover, even assuming that the assessment would have realized only $368.75, plaintiff would have been entitled to that sum, and not one-half thereof. The assessment to be levied in such case was not a full assessment, but was “one-half of one full assessment.” When the witness was attempting to testify as to what an assessment duly levied would have-realized, he must be deemed to have referred to the assessment that was authorized to be levied in such case, which was “one-half of one full assessment.” This was plainly the view of defendant’s counsel on the trial, who, in asking a direction of a verdict, said:
“I further ask that in no event has there been proven more than $368.75, and therefore no verdict can be predicated for an amount in excess of that.”
But it was incumbent on the defendant to prove what an assessment duly levied at the time of the member’s death would have amounted to, and, having failed so to do, the verdict should not be disturbed.
After the deceased had maintained his membership for a period of 20 years, and had paid his assessments on the assumption that his widow would receive $1,000 at his death, the constitution and by-laws of the defendant were amended, and his membership was changed so that the death benefit was reduced to $500. After paying dues for 22 years, some five weeks prior to his death an attempt was made to forfeit all his rights for alleged failure to pay his dues for December, 1911, and January, 1912, amounting to the sum of about $8. Such circumstances do not warrant excusing the defendant from complying strictly with the burden of proof in its attempt to whittle this claim down to $184.37.
In my opinion the' judgment should be affirmed, with costs.
Judgment affirmed, with costs.
GUY, J., concurs.