129 N.Y.S. 791 | N.Y. App. Div. | 1911
This action involves the validity of an amendment to defendant’s by-laws made in 1905. . In the case of Mock v. Supreme Council (121 App. Div. 474) the validity of this amendment was considered by this court and sustained. We are controlled by such decision unless, as is claimed by plaintiff, subsequent decisions of the Court, of Appeals in similar cases are in conflict therewith.
The cases so relied upon are Wright v. Knights of Maccabees (196 N. Y. 391) and Dowdall v. Catholic Mutual Benefit Assn. (Id. 405). The Dowdall case may be dismissed without further consideration as wholly ' inapplicable to the questions . here involved. There was in that case no suggestion of even a general reservation of power to amend by-laws,, rules or' requirements. Whatever the rule may be in other jurisdictions we think it must now' be deemed to be the settled law of this State that when the contract entered into between a member of a fraternal beneficiary organization and such organization provides for the payment of a fixed sum upon the happening of some event, such as the death of the member, and that assessments shall be at a fixed and specified rate, neither the conditions upon which* the sum shall become. payable can be altered, nor the sum to .be paid be reduced, nor the amount of the specified assessment increased, without the consent of such
On the other hand, if there is reserved in the contract a power of amendment of the laws governing such association, reasonably designating the subjects thereof, so that a person when he makes application for membership is fairly advised that the terms of the contract in which he is about to enter may be altered in the respects thus referred to, subsequent changes in such laws when reasonably made by the proper authorities of the organization are within their power and must be deemed assented to by him. (Beach v. Supreme Tent K. of M., 177 N. Y. 100.) In that case the court said: “If the certificate had provided that the payments therein specified should be subject to such modification as to amount, terms and conditions of payment and contingencies in which the same were payable as the endowment laws of the order. from time to time might provide, the amendments would be applicable to existing members.”
Although the court there used the word “certificate,” we think that it was not intended necessarily to limit the effect of a reservation to the words contained in the certificate alone. In Sabin v. Phinney (134 N. Y. 423, 428) the court says: “ The statute under which the corporation was organized, its by-laws, together with the application for, and the certificate of membership constituted the contract which existed between the member and the society, which instruments construed together measure the rights of these litigants.” ■ In other wolds, the question is one of construction of the contract, whether such contract is expressed in the statutes under which the corporation is organized, the constitution and laws existing when application for membership was made, the application for membership, the certificate thereof, or one or more of these combined. The test is, was the reservation of a power to sub
With this guiding principle let us now consider the contract between plaintiff and the defendant organization of which he is a member.
Defendant is a Massachusetts corporation. The court at Special Term has found as a fact “that by the statutory law or public acts of the Commonwealth of Massachusetts fraternal beneficiary organizations, of. which the defendant Supreme Couneii of the Royal Arcanum is one, have power to change and amend their rates of assessment.” The Supreme Court of Massachusetts has so construed these statutes. (Reynolds v. Royal Arcanum, 192 Mass. 150.) Existence of such a power, however, is insufficient if it is not exercised. ' But in determining the meaning of the contract entered into by plaintiff when he voluntarily became a member of this Massachusetts corporation, the existence of this statutory authority for change and amendment is one fact to be considered. At the time plaintiff applied for membership in defendant corporation its constitution specified the objects- of the order. Among others was one described as follows : “5th. To establish a Widows and Orphans’ Benefit Fund, from which, on the satisfactory evidence of the death of a member of the order, who has- complied with all its lawful requirements, a sum not exceeding three thousand dollars shall be paid to his family or those dependent on him, as he may direct.” The member'when making application determined whether he should be classed as a full-rate member and entitled to receive the sum above specified, or a half-rate member and entitled to a lesser amount... The amount of the assessments varied accordingly. Defendant’s constitution also contained a provision that the constitutions of subordinate councils and the laws of the supreme council, “ except those relating to the Widows and Orphans’ Benefit Fund,” may be altered or amended at any regular meeting of the supreme' council, but that the constitution of the supreme council and the laws governing the widows and orphans’ benefit fund should not be altered or amended except by a three-fourths vote of the entire membership of the supreme council, at a regular meet
Construing, then, the provision in the certificate requiring plaintiff to comply “with the laws, rules and regulations * * * that may hereafter be enacted by the Supreme Council to govern said * * * fund ” in connection with the provisions of the Massachusetts statute and the constitution and
The judgment should be reversed and a new trial granted, costs to abide the final award of costs. Among the so-called findings of fact are some which are possibly more strictly conclusions of law than findings-of fact, as for instance the finding that the change made in 1905 was without the consent of plaintiff and without notice to him, and in violation of his rights. In order that the Court of Appeals may be free to review all of the findings aiM conclusions in this case, whether of fact or laW,. the order of reversal should recite that it is upon questions of fact as well- as of law.
jENKSj P. J., Carr and Woodward, JJ., concurred; Hjrschberg, J., dissented.
■ Judgment reversed and new trial granted, costs to abide the final award of costs.