178 A.D. 391 | N.Y. App. Div. | 1917
Lead Opinion
The complaint alleges that the plaintiff is a resident of Albany county, and that the defendant is the president of the Cigarmakers’ International Union, an unincorporated
There is here no suggestion that there was ever any other constitution than that set forth in the complaint, and, judging from the evidence, the case went to the jury upon the theory that the plaintiff, as the surviving husband of Mary E. Tierney, was dependent upon her in some degree for his support; a large part of the testimony was devoted to showing that the said Mary E. Tierney helped her husband in some measure in the carrying on of his business as a peddler of garden produce, and the only fair construction of the evidence showed conclusively that the plaintiff, so far from being dependent upon his wife for support, was the sole support of himself and wife, with such incidental help in the way of dressing fowls for customers and in keeping his small accounts as the wife of a relatively poor man would naturally be expected to afford, and which he tells us in his complaint he was entitled to without compensation. The judgment in the City Court was clearly predicated upon this evidence, and upon appeal to the County Court this judgment was affirmed.
The plaintiff, the respondent on this appeal, now urges that the constitution of the Cigarmakers’ International Union of America was amended in 1912 so that it excluded heirs at law as beneficiaries, and that this was such a violation of the obligation of the contract as to make the amendment void as to this plaintiff. It is hardly necessary to consider whether such amendment in any manner affected the plaintiff as the surviving husband for the reason that no such issue was tendered in the courts below; the plaintiff pleaded the constitution as it now is and claimed the right to recover as the only surviving relative who was in any degree dependent upon the decedent. Having recovered upon that theory, the judgment must be supported, if at all, upon the theory on which it was rendered, and this obviously may not be done. In a general sense, of course, we are all dependent upon each other; our peace, health, comfort and safety depend, in a measure, upon the acts of others, but to suggest that a
Of course, a husband is not a relative of his wife. (Esty v. Clark, 101 Mass. 36; Lavigne v. Ligue des Patriotes, 178 id. 25, 29; Gallagher v. Crooks, 132 N. Y. 338, 343.) They are merged in one during life (Esty v. Clark, supra, 39, and authority there cited), and upon the death of either the survivor cannot, of course, bear any relationship to the deceased. The constitution here under consideration made provision, not for a surviving husband, but for a surviving widow, and the suggestion is made .that under our Statute of Distributions a surviving husband is treated the same as a widow; but this does not give us any authority for reading into this' constitution, designed for a national association, the special provisions of the statute law of New York. The instrument under which the plaintiff made his claim provided for making the payment to the widow, and a widow, in technical as well as ordinary use, has reference to a woman who has lost her husband by death. (30 Am. & Eng. Ency. of Law [2d ed.],
The judgments and order appealed from should be reversed, with costs.
All concurred, except Kellogg, P. ,J., who dissented in memorandum, in which Lyon, J., concurred.
Dissenting Opinion
(dissenting):
The death benefits are not intended solely for those dependent upon a member. The member may designate as beneficiary any person, even a stranger, by a proper paper filed with the association, or by will. Evidently the intention is, if the member has not designated a person to whom the payment is to be made, that it shall be (1) to the surviving spouse of a member, if any; (2) to the minor children, if any; (3) to dependent relatives, if any. If there is no surviving spouse, minor children or dependent relatives, the benefit is forfeited to the association.
It is manifest that the constitution, when adopted, did not
The wife of a member might be wealthy and might, in fact, be supporting her husband at the time of his death; but from the fact that she was his wife she is entitled to the benefit, if no designation is made. She gets the benefit, not as a dependent, because it is immaterial whether she is dependent or not, but as the person standing nearest to the deceased member, the person whom he probably would have selected if he had made a designation. I think that according to the true spirit of the constitution the word “ widow ” should be interpreted as “ widow or widower.”
Under section 143 of the by-laws the union became liable to pay death benefits in this case, the decedent having paid her dues for a great many years. But it seeks to avoid the payment by claiming that by her failure to make a designation the benefits are forfeited to the union. The union made the by-laws, and they should be most strictly construed against it, especially when it is urging a forfeiture.
It cannot consistently claim that any inequality was intended between its male and female members. The object and strength of the union is the equal protection to all of its members, without discrimination. The same reason which would give the benefits earned by a husband to the widow would give the benefits earned by the wife to the widower.
The constitution, in words, speaks of men only, and when by general language it imposes a duty or accords a right to them, it must necessarily follow that when women are received into the membership they are charged with the same duties and have the same rights as are given to men by the general language used. We are not interpreting the word “ widow ”
Lyon, J., concurred.
Judgments and order reversed, with costs. The court disapproves of the finding that the plaintiff was a dependent relative of the deceased member who at the time of her death was dependent in whole or in part upon her.