O'BRIEN, J.:

The issue presented upon the trial was as to whether or not the husband, William Conselyea, was a member in good standing at the time of his death. The defendant contends that, by his failure to pay the assessment No. 237, which was due on the 15th of June, 1892, he became suspended, pursuant to the laws of the association; and, further, that having resigned as a member during his lifetime, pursuant to the by-laws, his membership had ceased. It will thus be seen that the claims advanced are that the husband was suspended for failing to pay his assessments; that he voluntarily withdrew as a member, and that, in either aspect, he had surrendered whatever right he had as a member; and, therefore, not being a member in good standing at the time of his death, the beneficiary was entitled to no rights under the certificate which had been issued to him.

In determining the weight to be attached to these contentions the laws and rules of the defendant must be examined in the light of the facts here appearing, because such, according to the terms of the benefit certificate and the application for membership, constituted the contract between the member and the society, and these must be taken and construed together as measuring the rights of the litigants.

Upon the question of voluntarily withdrawing or resigning from the order, although the answer did not advance any such claim, testimony was admitted which tended to show that the member was desirous of having his resignation accepted, with a view, in violation of his agreement, to cheating his wife out of any benefits under the certificate. The defendant and the subordinate council recognized that they could not accept his resignation, because the laws of the order expressly provided that, to withdraw voluntarily or permanently, it was necessary for a member to pay all dues, surrender his benefit certificate and tender a release of all claims thereto. In presenting his application for withdrawal, the husband complied with none of these conditions, for although the claim is advanced that he had not paid his dues and the assessment of June, 1892, yet he was not in a position to surrender the certificate which was then held by the plaintiff and which he had parted with to her, nor did he tender a release of all claims thereto. She had secured the certificate under an agreement by which she was to pay the assessments, and these she paid, with the knowledge of the defendant, and thereby she acquired a vested interest in the certificate of which the member could not deprive her. And the very provision of the by-laws which required a surrender of the certificate and a release by the member had in mind just such a contingency, because it provides that the member's liability should not cease so long as the dues were paid until the certificate was surrendered and a release given; and for the same reason the defendant's liability must continue until the certificate is surrendered.

In Ireland v. Ireland (42 Hun, 212) the member took out a certificate, naming Jennie Ireland, a sister, as beneficiary. Afterwards he married the defendant. The court said: "One of the rules of the order, which was printed upon the back of the certificate, prescribed that any member desiring to make a new direction as to its payment might do so by authorizing such change in the form prescribed and printed upon the back of the certificate, to be attested by the recorder of the lodge and reported to be grand recorder, paying fifty cents, surrendering the old certificate and taking a new one. * * * What was needful to be done here, and what Mr. Ireland manifestly understood was needful, was to revoke the existing designation of the sister and then make the designation of the wife. How this was to be accomplished the rules of the association instructed Mr. Ireland, and he had agreed to observe them. He sought to observe them. On the face of the certificate the sister remains the designated beneficiary. There was one way in which she could have been divested of her expectant interest. She insists that since that way has not been observed, she has not been divested. It is plain that the association, bound by its contract to pay her, would have no answer to her demand."

Our conclusion, therefore, is, that the certificate having passed into the possession of the plaintiff, and the title thereto having vested in her for value, and she having thereafter paid the assessments to the defendant, who, through its subordinate council, had knowledge of these facts, it could not, in violation of its own laws, permit the husband, through spite and malice, fraudulently to deprive her of the rights in and to the certificate which she had thus secured.

The rights which the plaintiff secured in and to the certificate answer the further contention, that by failure of the member personally to pay the assessment in June, 1892, he was suspended, and all rights under the certificate were lost. With knowledge of the relations between the plaintiff and her husband, the subordinate council had received from her the dues and assessments up to June, and it is admitted that from that time to the time of her husband's death she regularly tendered the amounts of all dues and assessments levied, which were refused simply upon the ground that the council had been requested by the husband not to receive them. This was not a contest between the member and the order, but was one between a member and his wife; and where, as here, the latter had secured for value rights in and to the certificate, she could not be deprived of them, in the absence of any law of the order which, regardless of her equities and legal rights, would destroy the validity of the certificate. Nor could the husband deliberately make himself a member not in good standing so long as the plaintiff paid or tendered. The order, without objection, for a considerable time had received moneys from her, and it was not, therefore, because no such right is given by its rules or laws, in a position to terminate arbitrarily her right to pay such assessments and thus keep the certificate alive. We think that the beneficiary had the right to pay the dues and keep the certificate alive while the title and possession of the certificate was in her. Nor do we think that such title or possession was in any way impaired by the fact that it was originally secured pursuant to an agreement of separation which it is contended was, if not void, at least voidable, because prior to such agreement, and at the time the certificate was obtained, the plaintiff was named as the beneficiary, and she is not obliged to base her right of title upon the agreement assailed, but can predicate it upon the fact of her being the originally designated beneficiary, and upon the additional circumstance that for value its possession was subsequently delivered over to her, and that thereafter she made the payments until such time as the order refused to accept them from her.

In view, therefore, of both the equities and legal rights of the plaintiff in the certificate, we think that the direction of a verdict for the defendant was error, and that the exceptions should be sustained and a new trial ordered, with costs to plaintiff to abide the event.

VAN BRUNT, P.J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.

Exceptions sustained and new trial ordered, with costs to plaintiff to abide event.