52 N.Y.S. 1044 | N.Y. App. Div. | 1898
This is an action at law brought to recover a sum contracted to be paid by virtue of a contract of insurance. The evidence given upon the trial is quite meagre and unsatisfactory in'respect of the condition of the senior life branch of the defendant at the date of the death of Thomas Bird, the insured, and prior thereto. The defendant is an assessment association, and depends for the payment of its contracts of insurance npon the sums collected from its members. It has two classes or departments of insurance; one known as class “ A,” which is a regular life department, and one known as the “ Senior Life Department.” Bird was' insured in the latter department. By the terms of his policy or certificate of-membership in such department, so far as material to the questions we are about to consider, he was required to pay monthly the' sum of one dollar and thirty-three cents. Of this sum the association was authorized to retain such a per cent as would produce an average of four dollars a year upon each' certificate issued, for expenses; the sum of fifteen per cent for the cost of collecting the monthly payments, and twenty-five per cent to be deducted from the mortuary fund, and deposited to the credit of a reserve fund. The creation of the latter fund was authorized' by section 21 of chapter 175 of the Laws of 1883, as amended by section 6 of
“ Should the net amount collected during any one month from the members liable therefor, for the payment of all approved' death or disability claims on file .after first deducting 15'per cent for the ■ cost of collecting; and, second, the amount required for expenses • and adjusting; and, third, 25 per cent for the reserve fund, ever-be insufficient to pay all said approved claims in full, then a just average -of the amount so collected and . credited -to the mortuary fund for the payment of claims shall be made,, and all of the said approved claims on file shall then be paid fro rata, and such pro*349 rata payment shall be accepted by the beneficiaries as payment in full for all of said claims.”
• Section 4 of the constitution and section 28 of the by-laws are in all substantial respects of the same import. Under well-settled law the certificate and its conditions, and the constitution and by-laws, furnish the contract from which the rights of the parties are to be determined. (People ex rel. Atty.-Gen. v. Life & Reserve Assn., 150 N. Y. 94.) Bird received his certificate and became a member on the 13th day of February, 1892. He thereafter complied with all the requirements of the association until his death, on the 29th day of June, 1895. It is admitted that thereafter all the steps essential to be taken to fasten liability upon the association in favor of the beneficiary were had and taken. The only question raised by the association relates to the amount the plaintiff is entitled to recover. The association claims that, acting in pursuance of its contract with the assured, it has collected the assessments it contracted to collect, as provided in the contract, and that it now stands ready to pay the same. It appears from the record that the defendant did, after receiving notice of the death of Bird, collect the regular mortuary assessment, and that at that time there were only 400 members in its senior life department; that the assessment only realized the sum of §376.06, from which three death claims were to-be paid, and that plaintiff’s share amounted to the sum óf §94.49, which it offers to pay. It is quite evident that if the defendant has conducted its business in the ordinary way, and in pursuance of -its-constitution and by-laws, and has collected the assessment as required, it has fulfilled its contract and cannot be required to do more. It. did not guarantee to pay the policy which it issued, in its maximum amount, or in any other sum. It simply agreed to collect the monthly ¡payment and apply the same in discharge of the amount secured by the certificate, so far as that sum would go, after making the stipulated reductions, not, however, exceeding §1,000.
The plantiff claims, however, that although it may be true- that an assessment was collected, as required by the rules of the association, yet that she is entitled to resort to the reserve fund for the payment of her claim; and this right is claimed to arise by virtue of the following conditions: By chapter 690, section 210, of the Laws of 1892 the Legislature enacted that every policy issued by such association
We reach the conclusion that .the plaintiff becomes entitled to share in the reserve fund for the reasons we have suggested. What her rights therein are may not be exactly stated at this time, as the record is not sufficiently full for the purpose. While she is entitled to relief in this respect, she may not have it under her present form of action. The present action is purely one at law, and states a cause of action solely upon the certificate of membership and the contract of the parties. There is not a single statement or allegation which in any wise hints of the changed conditions in the business of the senior life department, nor any allegation tending to show that the plaintiff is entitled to equitable relief. While it is' true that it has been held that an action may be maintained upon the policy or certificate, and a recovery had for damages, where the association had refused to levy an assessment (O’Brien v. Home Benefit Society, 117 N. Y. 317), even though an equitable action could also be maintained, yet it is manifest that, where the whole subject-matter can only -be reached and full relief obtained by the interposition of equitable power, such relief cannot be had in an action at law which alone seeks the enforcement of a specific contract. (1 Pom. Eq. Juris. § 219; Williams v. Kiernan, 25 Hun, 355.)
The defendant raised this objection by motion for nonsuit and the direction of a verdict. It should have been granted, -except so
The judgment should be reversed, with costs to abide the event.
All concurred, except Cullen, J., absent.-
Judgment and order reversed, and new trial granted, costs to abide the event.