58 N.Y.S. 774 | N.Y. App. Div. | 1899
Lead Opinion
The “ Supreme Council of Boyal Templars of Temperance ” was organized by a special statute (Chap. 586, Laws of 1880), which gave insurance moneys or benefits effected in it no exemption from the claims of the creditors of the person to whom such benefits were payable. The defendant cannot claim exemption under the general statute of 1883 (Chap. 175), which provided that the money or other benefit to be paid by the corporation shall be exempt from
But if it were assumed that the money received by the defendant was exempt from attachment so long as it remained in the condition of money or as deposit in the bank, we think that when it was invested on mortgage the defendant lost the exemption. Immunity from seizure by creditors and immunity from taxation are, as a rule under our tax laws, co-extensive. We have held at this term (People ex rel. Kenny v. Reilly, 41 App. Div. 378) that real estate purchased by bounty moneys, or pay of soldiers when invested in real estate, are not exempted from taxation. The rule is the same whether the fund is invested in personal property or in real estate. It necessarily follows that the mortgage held by the defendant was liable to taxation, and equally liable to attachment.
The order appealed from should be reversed, with ten dollars costs and disbursements, and motion denied.
All concurred, except Goodrich, B. J., who read for affirmance, with whom Woodward, J., concurred.
Dissenting Opinion
(dissenting) :
I cannot agree with the prevailing opinion, and for the reasons stated below.
The plaintiff sued for the recovery of $1,220.23 and obtained a warrant of attachment against the property of the defendant, on the ground of a fraudulent disposition or concealment of his prop
The society in question was incorporated by a special act of the Legislature (Chap 586, Laws of 1880). Section 3 provides as follows : “ The objects of said corporation shall be to improve the moral, mental and social conditions of the membership of the order to induce men to lead sober, industrious and Christian lives; to prevent, by just means, the growth of intemperance; to aid in saving from its evil effects those already addicted to intemperate habits, and to aid and assist the membership and their families in case of want, sickness or death.”
The Insurance Law (Chap. 690, Laws of 1892) contains in certain sections the culmination of previous legislation upon the exenq> tians of moneys received from fraternal societies by members or beneficiaries, and it is not necessary to trace previous legislation upon the subject. Section 230 of that act authorizes the incorporation of fraternal beneficiary societies for the relief of members or beneficiaries, in case of sickness, disability or death; and section 233 provides that all beneficiary societies, orders or associations theretofore existing, the members of which are proposed and elected in subordinate lodges, councils or other bodies, according to their constitutions and by-laws, shall be “ mutual benefit fraternities.”
The charter, constitution and certificate of the Boyal Templars of Temperance, contained in the record, show that it had a supreme
Section 238 declares: “ All money or other benefit, charity, relief or aid to be paid, provided or rendered by any such society, order or association, whether voluntary or incorporated under this article or any other law, shall be exempt from execution, and shall not be liable to be seized, taken or appropriated by any legal or equitable process, to pay any debt or liability of a member, beneficiary, or beneficiaries of a member.” It seems clear to me that under this provision the money received from the society was exempt from execution or process, and as the money is clearly traced into and identified with the bond and mortgage, they also are exempt from a levy under the attachment.
The argument of the, prevailing opinion is based on the theory that while the money remains exempt before and until it is paid to the beneficiary, yet such exemption ceases the instant the money is actually paid. It is difficult for me to discover any benefit which would accrue to the beneficiary under such a construction. The beneficiary is told that as long as his claim is unpaid it cannot be reached by a creditor, but as soon as it is paid his creditor can seize it. This is keeping the promise to the ear and breaking it to the hope. The manifest intention of the Legislature was to enable a person to provide means which after his death should go to the support of persons dependent upon him in liis lifetime and likely to be left in need by reason of his death. To my mind it seems, unreasonable to say that so long as these beneficiaries are not reaping, and cannot by collecting the money resulting reap, any benefit from the prudent foresight of their supporter, the money is exempt from execution, but that as soon as they do collect, any creditor may seize it; and yet this is .the logical deduction of the prevailing opinion, and to such a proposition I cannot assent.
The plaintiff, also, contends that the section is limited to societies existing at the time of its passage, which should re-incorporate
I think that the order should be affirmed.
Woodward, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.