Supreme Court, December, 1914. [Vol. 88. be accepted by the supreme court of said society by a two-thirds vote it should then take effect, in which event the defendant was authorized by resolution to charge against each mortuary benefit certificate issued prior to January 1, 1899, as an assessment, a sum not exceeding its proportion of the valuation deficiency aforesaid, which should become due and payable on October 1, 1913, and if not so paid to be a lien against said mortuary benefit certificate, bearing interest until paid at the rate of four per cent. per annum, compounded annually, the same, together with such interest, to be deducted by the defendant from the moneys to be paid on such mortuary certificate. The supreme court of said defendant thereafter accepted said act by a two-thirds vote and proceeded to have another actuarial examination of its affairs made as of October 1, 1913, and it was found that on said date there was a valuation deficiency as to pre ninetynine members of liabilities over assets according to standard mortality tables of $24,500, which sum was about $1,000,000 less than the valuation deficiency charged to said members upon the actuarial examination made December 31, 1912, and which sum, less a surplus of $725,046, placed to credit of members joining after December 31, 1898, represented the total valuation deficiency of the defendant. The same examination showed that on October 1, 1913, out of the surplus funds then on hand amounting to about $21,000,000 the sum of $6,000,000 had been accumulated from payments made by pre-ninety-nine members, and it also appeared that, after paying all claims which arose during the year 1913, there was an accumulated surplus which was paid in by the whole membership during that year of over $300,000. Thereupon, acting under the authority of said act of parliament, the supreme court proceeded by resolution to charge said Misc.] Supreme Court, December, 1914. valuation deficiency of $24,500,000 upon the pre-ninetynine members and to apportion the same among said membership according to the amount of their respective certificates, the share so charged to the plaintiff being the sum of $520. This amount the plaintiff was required to pay on or before October 1, 1913, and in default of said payment it was declared to be a lien upon his certificate of insurance with interest at the rate of four per cent., compounded annually, the whole amount thereof to be deducted from any sum which should thereafter become payable on said certificate, The plaintiff protested against said charge and lien and refused to pay the same and subsequently to October 1, 1913, brought this action to set aside said lien and charge and to have his policy restored to its original amount and he asserts that the imposition of the same was a violation of his contract rights and, therefore, invalid. There was considerable evidence given upon the trial bearing upon the necessity and fairness of the sum thus charged against the pre-ninety-nine membership and, if that inquiry was necessarily involved, much could be said on either side of the question. It seems to me, however, that it is more a question of power in the defendant to make the charge and create the lien in question, for if it possessed such power it is hardly the province of the court to control the discretionary exercise of the same. In determining this question of power we must first ascertain whether the contract made between the parties is to be construed and the rights of the parties determined according to the laws of the state of New York or those of the dominion of Canada. The method pursued in joining the defendant and in the issuance of plaintiff's certificate of insurance was as follows: The plaintiff, who resided in the city of Watertown, Supreme Court, December, 1914. [Vol. 88. presented his petition for membership to Court Watertown No. 465, which was referred to a committee who having reported favorably upon the application he was balloted for and elected. He was then examined by the subordinate court physician and the medical examination forwarded to the home office in Toronto and, the same having been approved by the chief medical examiner of the supreme court and returned with such approval to the subordinate court, it proceeded to initiate him as a member. At the time of his initiation he paid the initiation fee and his first assessment and the recording secretary of the court thereupon completed his application for membership by filling in the date of his initiation and such application with the certificate of such secretary was by him then forwarded to the home office where he was registered and enrolled as a member in the department of the supreme secretary. In a few days the certificate or policy of insurance was made out and forwarded to the subordinate court for delivery. Before delivery, however, the bylaws provided that it must be signed by the member thus insured and such signature duly witnessed by the chief ranger of his court and countersigned by the recording secretary with the seal of the court attached (By-laws 1890, § 250) which, being done, the certificate or policy in question was delivered to the plaintiff at his home court in Watertown. Thereafter, as assessments came due, they were paid to said subordinate court and by it transmitted to the supreme treasurer at the home office in Toronto. From this statement of facts it clearly appears that the contract in question was made in the state of New York. There it was delivered and the final acts which were requisite to give vitality to it as a contract were there performed. A contract is made where the final acts are done which are essential to its validity and Mise.] Supreme Court, December, 1914. where it is in fact delivered. Meyer v. Knights of Pythias, 178 N. Y. 63; Whart. Confl. Laws (2d ed.), § 421; Voight v. Brown, 42 Hun, 394; Milliken v. Pratt, 125 Mass. 374, 376; Holder v. Aultman, 169 U. S.; SteinGray Drug Co. v. Michelson Co., 116 N. Y. Supp. 789. A contract of insurance is made, not where the policy was executed, but where it was in fact delivered. South Bay Co. v. Howey, 113 App. Div. 383, 385, 386; Swing v. Dayton, 124 App. Div. 58; affd. on opinion below, 196 N. Y. 503. And indeed if there was ever any doubt upon the subject it has finally been set at rest by the decisions of the United States courts that a policy of insurance made out in one state and delivered in another is a contract made in the state where it was delivered. Knights Templar & Masons' Indemity Co. v. Berry, 50 Fed. Repr. 511; Equitable Life Ass. Society v. Winning, 58 id. 541; Equitable Life Ass. Society v. Clements, 140 U. S. 226; Mutual Life Ins. Co. v. Cohen, 179 id. 262, 265; Mutual Life Ins. Co. v. Hill, 193 id. 551. The authorities, in relation to what law shall govern in the construction of contracts made in one jurisdiction to be performed in another, do not seem to be in perfect harmony. It was laid down many years ago as a general rule that the law of the place where a contract is made determines its nature, validity, obligation and legal effect and also prescribes the rules for its construction and interpretation, unless it appears that it was to be performed in another place or was made with reference to the laws and usages of such other place, in which case, following the rule of the presumed intention of the parties, the law of the place of performance furnishes the guide for its construction and interpretation. This rule seems to have been steadily adhered to by the courts until a compara Supreme Court, December, 1914. [Vol. 88. tively recent period. Sherrill v. Hopkins, 1 Cow. 103; Dike v. Erie R. R., 45 N. Y. 113, 116; Jewell v. Wright, 30 id. 264; Merchants Bank of Canada v. Griswold, 72 id. 473, 480; Curtis v. Delaware, L. & W. R. R. Co., 74 id. 116, 120; Interstate Steamboat Co. v. First Nat. Bank, 87 Hun, 93. The more recent cases, however, lay down the rule that all matters bearing upon the construction, interpretation and validity of a contract must be determined by the law of the place where the contract was made, while all matters connected with its performance are regulated by the law of the place of performance. Scudder v. Union Nat. Bank, 91 U. S. 406, 413; Union Nat. Bank v. Chapman, 169 N. Y. 538, 543; Stumpf v. Hallahan, 101 App. Div. 383; Hooley v. Talcott, 129 id. 236. The distinction, if any, between these rules is, however, unimportant in this case for, as we have seen, the contract of insurance was made in this state and, as no place of performance is specified in the contract, presumptively it was to be performed in the place where the contract was made. Pomeroy v. Ainsworth, 22 Barb. 120, 128; Stumpf v. Hallahan, 101 App. Div. 120, 128; 2 Whart. Contr. § 72; 5 Lawson Rights & Rem. 4142; Perry v. Erie Transfer Co., 28 Abb. N. C. 430; Cahill Iron Works v. Pemberton, 30 id. 450. And besides, as no place for the payment of the sum insured is mentioned, it would be the duty of the debtor to search out the creditor and pay him personally if he was to be found within the state. Smith v. Smith, 25 Wend. 406; Hale v. Patton, 60 N. Y. 236; Stoker v. Cogswell, 25 How. Pr. 274. The party insured resides within the state of New York and, while the place of payment is by no means controlling, it is nevertheless a factor in determining where the contract is to be performed. On all the |