Fink v. Fink

• Decision Date: 27 June 1902
• Citation: 64 N.E. 506,171 N.Y. 616
• Parties: FINK v. FINK.
• Court: New York Court of Appeals Court of Appeals

171 N.Y. 616

64 N.E. 506

FINK

v.FINK.

Court of Appeals of New York.

June 27, 1902.

Appeal from supreme court, appellate division, Fourth department.

Action by Caroline Fink against Ellen Fink and another. From an order of the appellate division (68 N. Y. Supp. 80) reversing a judgment for defendants, defendant Fink appeals: Reversed.

The ‘D., L. & W. Mutual Aid Society’ is a mutual benefit association incorporated under the laws of the state of Pennsylvania, but doing business in the state of New York. Its membership is confined to employés of the Delaware, Lakawanna & Western Railroad Company, and ‘its object is to secure assistance it its members in case of accident, and to their families and friends in case of death.’ On the 23d of September, 1894, Eugene G. Fink, and employé of said railroad company, applied in writing for membership in said association, and in his application designated the plaintiff, his mother, as the beneficiary. On the 21st of October following he was duly admitted to membership, and a certificate was issued to him accordingly, naming his mother as the beneficiary. He delivered the certificate to her, and she retained it until his death on the 21st of December, 1898. On the 19th of May, 1898, he was married to the defendant Ellen Fink, and soon after, upon his application, said association issued to him another certificate of membership, designating his wife as the beneficiary. He thereupon delivered the certificate to her, and she has ever since retained possession thereof. The by-laws of the association provide that upon the death of a nember the person ‘named in his declaration shall receive a sum equal in amount to one dollar from each member in good standing at the date of his death, provided that such amount shall not exceed the sum of $1,000. * * * Should a member lose his certificate, or ask for a new one at any time, it shall be issued only upon the payment of 25 cents, said certificate to be marked ‘Duplicate’ or ‘Renewal,’ as the case may be.' In November, 1898, the member and his wife were living with the plaintiff. He was very sick, and she took care of him until she was directed by his parents to leave, whereupon she returned to the home of her mother. In a few days she went back to take care of her husband, but, after remaining a short time, she was requested by the plaintiff to leave, when she again returned to her mother, and after that, although she asked for the privilege, she was not permitted to stay with him. On the 8th of December, 1898, Mr. Fink, while ill and weak, wrote a letter to one Wiltshire, a collector of the association, ‘requesting that another certificate of membership be issued to him, designating the plaintiff as his beneficiary, and inclosing in said letter the sum of 25 cents.’ This letter was delivered to Wiltshire, who wrote to the defendant Ellen Fink asking her to surrender her certificate, and on December 21, 1898, he received a letter from her declining to do so. On the day last named he wrote to the financial secretary of the association, stating that Mr. Fink ‘desired a new certificate made out designating the plaintiff as his beneficiary, and inclosing therein the fee of 25 cents.’ He never forwarded the letter written by the member on December 8, 1898, because it was not accompanied by the old certificate, but kept it until April, 1899, when he delivered it to the attorneys for the association. On December 21, 1898, Mr. Fink was upon his deathbed, and during the morning of that day, upon his father's request, he dictated to his father's lawyer, and thus wrote a letter to the secretary of the association, referring to his previous request to Wiltshire, and to the fact that he had received no response, and asking that a new certificate be issued to him, naming the plaintiff as beneficiary. He inclosed 25 cents to pay the fee, and caused the letter, duly signed by him, to be registered and mailed. This letter, as well as the one written by Wiltshire, were both mailed at Buffalo, N. Y., while Mr. Fink was still living, but neither was received by the officers of the association at Scranton, Pa., until the day after his death. No action was taken by the association upon either request. On the day of his death, and on the same occasion that he dictated the letter to the association, the member executed a will, drawn by the lawyer who transscribed the dictation, by which he gave all his property to the plaintiff, including by specific mention the death benefit, except that the sum of $100 was bequeathed to any child thereafter born of his marriage. Both the mother and the widow claimed the amount payable by virtue of the contract, and the association was ready to pay to the one lawfully entitled to receive the money. The plaintiff brought this action to require it to pay her the amount called for by the certificate, and to exclude the defendant Ellen Fink from taking action to obtain any part thereof. It was claimed by the defendant Mrs. Fink that the plaintiff exercised under influence upon her son while he was sick to induce him to write said letters, and evidence was given by either side upon this issue, but the trial judge made no finding upon the subject. He found as a fact that the request to Wiltshire was not a request to the association, and that the payment of the 25 cents inclosed in the letter to him was not a payment to the association. He also found that the association never consented to the change of beneficiary in favor of the plaintiff, and that the second certificate was in full force when Mr. Fink died. The judgment ordered by him in favor of the widow for the sum of $1,000 was reversed upon appeal by the appellate division, one of the justices dissenting, and the defendant Ellen Fink appealed to this court.Daniel V. Murphy and William L. Rumsey, for appellant.

Henry Schwendler, for respondent.

VANN, J. (after stating the facts.

Eugene Fink, as a member of the association, had the power to change the beneficiary named in the certificate, provided, in executing the power, he complied with the contract which created it. That contract consisted of the application, the certificate showing how the power of appointment had been exercised, and the by-laws, which, among other things, regulated the method of appointing a new beneficiary. They provided that a new certificate should be issued if the member asked for...