72 N.Y.S. 755 | N.Y. App. Div. | 1901
The judgment appealed from should be affirmed, with costs.
The action was brought to recover upon a certificate issued upon
The trial court held that the law upon which the defense was based was never legally enacted, and was not binding upon the deceased or his beneficiary.
The certificate was issued January 13, 1893. There was then no restriction against engaging in the sale of liquors, and the deceased was then engaged in that business. He continued to be a member in good standing, certainly until Hay 12, 1899,. and all this time was engaged in the sale of liquors. In 1898 the law upon which the defense is based is claimed to have been enacted. Thereafter, and May 12, 1899, the defendant suspended deceased under the amended law and refused to receive further dues, and assessments from him. He tendered all dues and assessments, however) and continued the business of selling liquors until he died, July 24, 1899. It is not disputed that the laws were a part of the contract of insurance, and that any amendments thereto, made after the certificate was issued, were also binding upon the deceased as a member, unless they improperly .diminished, or entirely cut off, his contract right. The claims are :
First. That the amendment in question was never legally enacted.
Second. That the amendment did not cover the deceased’s case.
Third. That, the amendment, if it covered his case, improperly diminished, or entirely cut off, his contract rights.
■First. The claim that the amendment was never legally' enacted appears to be well founded. This question is somewhat complicated by the fact that the provision as to the amendment of laws was itself attempted to be amended during the life of the certificate, and in this attempt-the ¡Provisions as to amendments were not complied with.
When the certificate was issued in 1893, article X of the laws provided in effect that the laws should not be amended unless the proposed amendment should be submitted in writing signed by three .past-master workmen, and passed by a two-thirds vote of that and the succeeding session of the grand lodge. At the annual session of the grand lodge in 1895, an amendment was introduced,
This- change in article X was an important one, affecting the rights of members, and the provisions of the article itself were not complied with in making the amendment. The original article provided that amendments should not be made unless certain specific things were done, and these things were not done in attempting to amend the very article itself. The importance to the deceased of the amendment made is apparent, when we consider that, at the very session of the grand lodge at which the same was made in 1897, the attempt was made under this amended article to make other amendments' which, with one made the following year, 1898, are the basis of the defense in this action.
These amendments were not submitted in writing signed by three past-master workmen, nor were they passed by a two-thirds vote of the succeeding or second grand lodge. Those voted for, and declared adopted in 1897, provided for expelling a member who engaged in the business of selling liquors, but they do not seem to be relied upon here, and very likely were regarded as superseded
We agree with the trial court that this amendment was never legally enacted, so as to be binding upon the deceased or his beneficiary. The laws which were concededly binding upon the members were also binding upon the order, and they could- only be amended by complying with the provisions of the laws themselves as to the making of such amendments. Article X was, therefore, never properly - amended and as a result article IV was never amended and formed no basis for the defense in this case.
Second. The amendment does not by its terms cover this case-. The deceased did not, after March 1, 1897, or at any time thereafter, enter into the business of selling liquors. He was all the time ungaged in such business, from the time he became a member in 1893 until he died in 1899. This may be regarded as a technical construction of the amendment, but the defense in this case is .not ¡ one to be favorably considered, and we are not inclined to make any liberal construction in favor of the defendant to enable it to defeat the plaintiff’s right of action, especially as the effect of the amendment, if so-liberally construed, would be that.
Third. It would not only diminish, but entirely cut off, the contract rights of the member and his beneficiary.
It does not provide that the‘member shall be suspended unless or until he ceases to engage in the business of-selling liquors, but he
The deceased while engaged in this business in 1893 took this certificate. It was perfectly legal then to take it and be and remain in •the business. He continued in the same business and remained a member of the order and paid all dues and assessments on this certificate until the year 1899 when he died. Six years he paid upon a valid certificate, and he had rights under the contract which the defendant could not deprive him. of. In 1898 the defendant assumed to enact this amendment to the laws, which if operative at all as to the deceased and his certificate, cut off entirely all rights under the same. Clearly this could not be done. Authority is hardly needed for this proposition. (Kent v, Quicksilver M. Co., 78 N. Y. 159; Matthews v. A. P. S. N. Y., 136 id. 342; Engelhardt v. Fifth Ward L. Assn., 148 id. 287.)
The court very properly decided that the amendment relating to the selling of liquor was not operative as to the deceased or his beneficiary and constituted no defense to this action. .
The defense as to the mortuary board of claims must fail also, if for no other reason, because the amendment with reference thereto was not legally enacted so as to be binding upon deceased or his beneficiary. ■ There was the same fault in the attempted amendment as there was with reference to the one relating to the selling of liquor.
For the reasons hereinbefore stated the judgment appealed from should be affirmed, with costs.
All concurred, except McLennan, J., not sitting.
Judgment affirmed, with costs.