Abby Victors, Respondent, v. National Provident Union, Appellant

Abby Victors, Respondent, v. National Provident Union, Appellant. Second Department, June 8, 1906. Benefit insurance — when complaint alleges performance by insured a waiver of his default by defendant cannot be shown — stipulation construed. When in an action to recover on a certificate of benefit insurance the complaint alleges full performance by the insured, which the answer denies, evidence of a waiver of his default by the insurer is not admissible. Although parties have stipulated that “each party expressly reserves any right it may have to show at the trial a waiver,” etc., the stipulation does not make such evidence admissible under the pleadings, as neither party had a right to show waiver. Appeal by the defendant, the National .Provident Union, from a judgment of the Supreme .Court in favor of the plaintiff, entered in the office of the clerk, of the county' of Kings on the 3d day of April, 1905, upon the verdict of a jury rendered by direction of the court after'a trial at the Kings County Trial Term.- Edward S. Peck, for the appellant. Edwin Louis Garvin, for the respondent. [MAJORITY — Rich, J.:] Rich, J.: This action was brought by plaintiff as assignee under a.benefit certificate issued by defendant to Henry Victors, deceased. A . In her complaint the plaintiff alleged full performance on the part of insured: “ that said Henry Victors at all times performed all tlie duties incumbent upon him as a beneficiary member of said corporation, and at all times promptly paid all dues and assessments as provided .in and by the laws, rules and regulations of said corporation, and has otherwise Complied with all the requirements thereof, and performed all the conditions on- Ms part.” - , ■ This allegation was denied by defendant. Upon the trial plaintiff offered evidence, which was received over • defendant’s objection and exception, for the purpose of establishing a waiver on the part of defendant of full performance as a condition . precedent to a recovery. . ' It appears that deceased had failed and neglected to pay .his premiums as required by defendant’s rules, and was suspended from - membership, and at the time of his-death had not -been reinstated. The verdict was directed by the learned trial court 'upon the theory that defendant -bad waived the right tó insist upon actual reinstate- '■ ment of the deceased after his suspension, although the laws, of defendant required this to be done. We think the admission of. evidence, tending to establish a waiver was error. The issue presented by the pleadings was whether insured had complied with the rulés and laws -of defendant, not whether defendant had Waived compliance with them; and defendant, had a right to insist that the action be tried upon the issues presented by the pleadings.. . The-stipulation to which our attention is called does not help the plaintiff, It cannot be regarded as an amendment, or as in any way changing the issues; “ each party expressly reserves any right it may have to show at the trial a waiver,” etc. Neither party had a right to introduce evidence of a waiver. None is given by the stipulation. We canuót say that it will be impossible for plaintiff to establish a cause of action under a proper pleading,' and a new trial ought, therefore, to be granted. The judgment should be reversed and a new trial granted, costs to. abide the event. Hirschberg, P. J., Jenks and Hooker, JJ., concurred. Judgment reversed and new trial granted, costs to abide "the event.