8 N.Y.S. 185 | N.Y. Sup. Ct. | 1889
When this action was before the court on the former appeal, the opinion by the learned justice to whom the case was assigned held substantially, with much elaboration, that the plaintiff could not recover, inasmuch as it was competent for her husband to change the beneficiary named in the certificate which was issued by the defendant corporation to him. 6 H. Y. St. Hep. 151. But the majority of the court did not concur in, though they did not dissent from, that conclusion, but contented themselves with agreeing to an order for a new trial, upon the ground of erroneous admission of evidence of the plaintiff, under section 829 of the Code of Civil Procedure. The Grand Lodge of the Ancient Order of United Workmen is a domestic cor
“No. 9,513. $2,000.
“The Grand Lodge of the Ancient Order of United Workmen of the State of New York.
“This certificate, issued by the authority of the Grand Lodge of the Ancient Order of United Workmen of the State of New York, witnesseth: That John C. Sabin, a master workman degree member of the George Washington Lodge, No. 132, of said order, located at Hornellsville, in the state of New York, is entitled to all the rights and privileges of membership in the Ancient Order of United Workmen, and to participate in the beneficiary fund of the order to the amount of $2,000, which sum shall, at his death, be paid to Ella A. Sabin. ”
The plaintiff received such certificate from John 0. Sabin, and placed the same for safe-keeping in her private box, where it remained until the month of May, 1883, when John C. Sabin and the plaintiff separated, and never afterwards lived together as husband and wife. At about this time John G. Sabin took the certificate from the plaintiff’s box, or otherwise obtained possession of it, without her knowledge or consent. Meeting the defendant Andrew S. Phinney shortly thereafter, John G. Sabin expressed to him a determination to sever his connection with the order, which Phinney undertook to dissuade him from doing, and offered to pay the assessments which might be made upon the certificate or policy, if Sabin would give him an assignment of the same. To this Sabin assented, and on the 10th day of July, 1883, indorsed upon the certificate, so issued to the plaintiff, a redesignation of the beneficiary, in the following words: “I, John C. Sabin, to whom the within certificate was issued, do hereby revoke my former direction of, or the payment of, the beneficiary fund due at my death, and now authorize and direct said payment to be made to A.S. Phinney, or his heirs bearing the relationship to himself of-This was attested by the recorder of the Washington Lodge, and the seal of the corporation attached. The same was delivered to Phinney, and by him delivered to the grand recorder of the defendant corporation, where it was filed upon' payment of the usual charges. Subsequently, and on the 20th day of July, 1883, a new certificate was issued by the Grand Lodge to Phinney, in all respects like the one hereinbefore set forth, except that Phinney or his heirs were named as beneficiaries therein, and its date was the 17th day of July, 1883. From the time of the agreement made between John C. Sabin and Phinney, the defendant Phinney continued to pay the dues and assessments, and in all respects complied with the by-laws and regulations of the Grand Lodge, up to the 13th day of October, 1883, when John C. Sabin was killed in a railroad accident. The defendant Phinney was not related to John C..Sabin in any degree of affinity or consanguinity.
The question to be decided upon this appeal is whether it was competent for John O. Sabin to change the designation of the beneficiary in this certificate. The solution of this question is to be had from an inspection of the certificate itself, and of the constitution and by-laws of the order under which it was issued, for it does not appear that the plaintiff had any right to the benefit of the provisions thereof, except as the same was acquired by virtue of the certificate, and of its delivery by the assured to her. The circumstances
So long as the plaintiff had no interest in the certificate save that which was voluntarily given her without consideration, it was competent for the assured to designate a new person as the recipient of the moneys becoming payable upon his death. There is not found in the certificate or in the charter or by-laws of the lodge any provision which, in the absence of any claim which is not greater than a proposed gift, prohibits a new and different designation of the beneficiary in the certificate down to the very time of the death of the assured. There was no executed gift by the husband to the wife in the delivery by him to her of the certificate alone, because, while she thus held the possession of it, she was bound equally with her husband by the several provisions of the charter and by-laws, which permit a free transfer of the certificate. This consideration removes the case from the operation of that class of decisions of our courts relating to an entirely different kind of insurance, under different laws and regulations, and aimed at different purposes. Upon these considerations it follows that the judgment should be affirmed, but without costs. All concur.