120 N.E. 93 | NY | 1918
Lead Opinion
In March, 1886, Griffith Evans, the plaintiff's testator, became a member of the defendant Supreme Council of the Royal Arcanum, a fraternal benefit society. One of its by-laws provided that the object of the society was to establish a widows' and orphans' benefit fund, from which, on satisfactory evidence of the death of a member in good standing, a *500 sum not exceeding three thousand dollars would be paid to his widow, if he had so directed.
In his application for membership he agreed that his suspension or expulsion from, or his voluntarily severing his connection with, the society would forfeit the rights of himself and his family or dependents to all benefits and privileges therein. He also agreed to make punctual payments of all dues and assessments for which he might become liable and to conform in all respects to the laws, rules and usages of the society then in force or which might thereafter be adopted. Upon this application a certificate of membership was issued to him which provided, in part, that if he complied with the laws, rules and regulations then existing, or which might thereafter be enacted, governing the council and fund, the society would, upon receiving satisfactory evidence of his death, pay to his widow, Marion L. Evans, a sum not exceeding $3,000.
At the time he became a member, assessments of $1.68 were imposed at irregular intervals, which he paid until 1898, when the by-laws were amended and he was required to pay a monthly assessment of $3.44. These assessments he paid until 1905, when the by-laws were again amended and he was required to pay a monthly assessment of $6.33 until he attained the age of sixty-five, when it was increased to $16.08. He paid the monthly assessment of $6.33 to and including February, 1913, when he became sixty-five years of age, and thereafter paid $16.08 each month until the 1st of October of that year, when he tendered the assessment of $3.44 under the amendment of 1898 and also the sum of $6.33 under the amendment of 1905. The tenders were refused upon the ground that the amount due was $16.08, and he was notified at the time of such refusal that unless he paid that sum he would be suspended from membership and lose all the benefits accruing under the by-laws. In refusing to pay the assessments he relied upon a decision of this *501
court (Green v. Royal Arcanum,
He then brought this action, the purpose of which was to procure a judgment directing the society to receive the sum of $3.44 each month as his assessment; and to enjoin it from suspending him upon his making such payment. Upon the complaint and affidavits he obtained an injunction pendente lite, enjoining the society from suspending him as a member and from in any manner interfering with his rights and privileges as such. To obtain the injunction he gave an undertaking in the sum of $250, to the effect that he would pay to the defendant such damages, not exceeding that sum, as it might sustain by reason of the injunction, if it were finally determined that he was not entitled thereto.
This was the situation when he died on March 23, 1915. After his death the action was continued in the name of his executrix, who served a supplemental complaint, in which she asked that it be adjudged he was a member in good standing at the time of his death; that the contract was then in force; and that the valid, legal rate of assessment from October 1, 1913, to the time of his death be determined. At the trial the facts were stipulated, from which it appeared that an appeal was taken from the decision of this court in Green v. Royal Arcanum (supra) to the Supreme Court of the United States, which reversed this court and held, in substance, that the amendment of 1905 was valid and assessments made thereunder were binding upon all members of the society. Notwithstanding such decision, and the fact that the assessments stated had not been paid, the trial court reached the conclusion that Mr. Evans, at the time of his death, was a member in good standing; that his contract of insurance was then in force; that the valid and legal rate of assessment for him from October 1, 1913, to March 23, 1915, *502 was $16.08 per month, which the plaintiff was directed to pay and she was awarded costs against the society. Judgment to this effect was entered upon the decision, from which an appeal was taken to the Appellate Division, where the same was affirmed, two of the justices dissenting, and defendants now appeal to this court.
I am of the opinion the judgment of the Appellate Division and of the Special Term should be reversed and the complaint dismissed. Mr. Evans, at the time of his death, was not a member of the society. The contract between him and the society was the constitution, by-laws, his application for membership and the benefit certificate issued thereon. (Sabin v. Phinney,
It is no answer to the suggestion to say that the court, by its decree, directed his executrix to pay the assessments which he ought to have paid in his lifetime. A contract of this character, once destroyed, cannot be brought back to life in that way. It is beyond the power of a court of equity to so decree. Had Mr. Evans lived he would have been under no obligation to make the payments. The society could not have compelled him to make them. The injunction given imposed no such obligation. He did not even offer or agree to make such payments in case he were successful in the action.
I am also of the opinion that plaintiff, as his executrix, *504
cannot maintain the action. She, as such, has no interest in its subject-matter. It is elementary that an executor can maintain an action only when the subject-matter thereof affects the estate of his testator. Her testator had no interest in the proceeds of the certificate issued to him and his estate had none. He was merely authorized to designate some one to receive the proceeds to be paid upon his death. He designated his wife and the certificate issued to him provided that the society would pay to her, and not to his estate. If, at the time of his death, he had been a member in good standing, she personally would have been entitled to receive whatever the society paid. (Beeckel v. Order of UnitedFriends, 58 Hun, 7; affd.,
My conclusion, therefore, is that the judgments of the Appellate Division and Special Term should be reversed and the complaint dismissed, with costs in all courts.
Dissenting Opinion
The opinion in this case makes the injunction order granted by the Supreme Court a useless formality and a nugatory process. I cannot agree that the injunction, which concededly restrained the officers from expelling Griffith Evans from the Royal Arcanum for the alleged non-payment of dues, was useless and a vain and empty effort upon the part of the court to preserve his rights. The officers and the *505 organization were restrained, but a by-law or contract of the member, it is said, was so passively effective as to nullify the injunction.
Griffith Evans was a member of Rome Council, No. 150, of the Royal Arcanum. He was sixty-five years of age and had paid dues for over twenty-five years. The organization had increased his dues from $1.86 to $3.44 and then to $6.33 a month, and finally, when he became sixty-five years of age, to $16.08 a month. This action had been held illegal by our court. (Green v. SupremeCouncil of the R.A.,
"Ordered, that the above named defendants, their officers, agents, attorneys and employees, and any and all other persons be, and each, and all of them are hereby enjoined, restrained and prohibited from suspending the plaintiff, as a member of the defendants, and from in any manner interfering with his rights and privileges in said Supreme Council of the Royal Arcanum, or in said Rome Council, No. 150, of the Royal Arcanum, until the further order of this Court."
A bond was given to accompany the injunction, agreeing to indemnify defendant for any loss or damage occasioned by reason thereof. The supplemental complaint, according to the agreed statement of facts, asked that the valid legal rate of assessment be determined. This court is now about to hold that this injunction did not prevent the expulsion of Griffith Evans; that the working of the by-laws of the association did that which the association was restrained from doing. The by-laws read: "Any member failing to pay any rate or assessment *506
before the time prescribed for such payment in the laws of the order or to pay any extra assessment within the time limited or prescribed therefor in the notice thereof shall stand suspended from the order and all benefits therefrom." The prevailing opinion states that while the Supreme Court enjoined his expulsion and sought by means of injunction and bond to preserve the membership until the amount of the dues should be determined by the court, yet the effort was abortive as the member expelled himself under the by-laws for the non-payment of the dues demanded. To state such a proposition is to answer it. What was the object of resorting to the courts to determine the controversy between the member and the order if the court had no power to grant relief? We are about to decide that the very contract which the court was called upon to construe deprived the court of jurisdiction. Careful search fails to discover any case where equity is without power to maintain the membership in an organization like the Royal Arcanum until a controversy over that membership is settled. The following cases indicate that such power does exist. In Meyer v. Knickerbocker Life Ins. Co. (
The undertaking furnished, as in this case, saves harmless the association from any damage accruing by reason of the injunction. It is said that the member does not agree to remain in the order provided the court determines that the higher amount is due. He remains a member as long as the injunction continues, and his bond is liable for the dues ultimately determined as the amount payable under the by-laws. No other reasonable interpretation can be given to the proceedings. The spirit and the fair intent of the injunction order should govern. (Stolts v. Tuska,
Before Griffith Evans' action came to trial, he died, and his widow, as executrix, was substituted in his place *508 and a supplemental complaint served in which she states that the estate is ready to pay the increased amount if the court should determine that such were the sum due, and further asks that the membership certificate be declared in force and effect. Objection is made, in the main opinion, to the continuance of the action by the executrix. It is said that the estate has no interest in the costs. This may be so, but the executrix has an interest in protecting the estate from liability upon the bond given on the injunction and also in having judicially determined the liability of Griffith Evans upon the membership certificate up to the time of his death. The validity of this point seems to be predicated upon the correctness of the opinion that the certificate of membership was canceled.
The fact that Green v. Supreme Council of the R.A. (
HISCOCK, Ch. J., CUDDEBACK and ANDREWS, JJ., concur with McLAUGHLIN, J., and CARDOZO, J., concurs in result; CRANE, J., reads dissenting opinion; POUND, J., not voting.
Judgments reversed, etc. *509
