74 N.Y.S. 1057 | N.Y. App. Div. | 1902
Lead Opinion
This action was brought to recover the sum of $1,000 from the defendant, a domestic corporation, alleged to be due the plaintiff from and out of an endowment fund established by the defendant under its constitution and by-laws. The defendant is an order organized for benevolent and philanthropic purposes, and among other provisions it established an endowment fund for the benefit of widows, orphans and parents of the members. The son of the plaintiff, Emanuel Grossmayer, became a member of the defendant order in January, 1891, obligating himself thereby to observe the constitution, laws and rules of the order. At the time said Grossmayer became a member, the constitution and by-laws provided that out of this endowment fund the sum of $1,000 should be paid on the member’s death, first, to his widow; second, to his children,'if he leave no widow; third, to his father, if he leave neither widow nor child; fourth, to his mother, if he leave neither widow, child nor father, and fifth, such beneficiaries as the member might direct, provided he left surviving none of the relatives designated in the 4th provision. The constitution and by-laws further provided that in case the member left neither wife, child nor parents, and failed or neglected to make any designation as to his beneficiaries, the endowment should fail and go into the endowment fund of the district. Provision was made for amending the constitution and by-laws, and in January, 1896, an amendment was duly made of the laws pertaining thereto and the provisions as to the endowment going to the parents in case of the failure of widow or child to survive the deceased member was stricken out. The amendments to the by-laws provide as follows: “ Sec. 5. Upon the decease of a participant in this fund there shall be paid the amount secured by him respectively: First, to his widow; second, to his children, if there be no widow; but the brother may, by a designation in the book provided for that purpose, declare that the Endowment, or a part thereof, shall be paid to such beneficiary or beneficiaries as he may designate, to the exclusion of his children, provided he leaves no widow. In such case a designation to the executors or administrators of the brother is a valid and sufficient designation.”
“ Sec. 9. A member having neither wife nor child must designate in writing in such book, in the manner hereinbefore provided, to
In March, 1892, the plaintiff’s son was admitted to Bloomingdale asylum as an insane patient, and from that time until his death in September, 1896, "he was incapacitated from performing any act requiring mental operation. His dues to the order, however, were regularly paid, and at the time of his death the deceased was a member in good standing. . Deceased did not, however, make the designation in the book as provided by the amended by-laws. He died leaving neither wife nor children, but leaving his mother, the plaintiff in the action, who claims to be entitled to receive the fund. It is the well-settled general rule, applicable to these organizations, that the certificate of membership and its conditions, together with the constitution and by-laws of the order, furnish the contract by which the rights of the members to participate in the benefits are to be determined. (Bird v. Mut. Union Assn., 30 App. Div. 346.) Where the constitution makes provision for a change in it and its by-laws by the action of the society, such right to change forms a part of the contract and the members are bound by such changes as are regularly made. The only limitation upon the power seems to be that the by-laws must be reasonable in their terms and operation, and consistent with the provisions of the constitution. (Parish v. N. Y. Produce Ex., 169 N. Y. 34.) So far as the amendments to the by-laws in this case are concerned, they :are undoubtedly reasonable in character, consistent with the provisions of the constitution, and, therefore, such as the organization had the right to make. Fot only must the. change, be reasonable, however, but the operation of the law must also give fair opportunity for a compliance with its provisions. A by-law, however reasonable in form, would necessarily be unreasonable in' its operation, if the members were not given fair opportunity to make compliance with it. The condition always is that the person upon whom the by-law is to operate must be able to and have opportunities for making compliance with its terms, and if by the intervention of the vis majors or other equivalent condition such opportunity is not given, the party will usually be held excused and no forfeiture will be worked. (Wheeler v. Conn. Mut. Life Ins. Co., 82 N. Y. 543.) In this case it was held that insanity did not excuse the payment of premiums
O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.
Dissenting Opinion
I dissent. I do not think that a corporation can make its by-laws operative as to some members and not as to others of the same class. The reasonableness of a by-law is not to be judged by the fact that one member is so situated that he cannot comply with it.
Judgment and order affirmed, with costs.