Stronge v. Lodge

• Decision Date: 15 October 1907
• Citation: 189 N.Y. 346,82 N.E. 433
• Parties: STRONGE v. SUPREME LODGE, K. P.
• Court: New York Court of Appeals Court of Appeals

189 N.Y. 346

82 N.E. 433

STRONGE

v.SUPREME LODGE, K. P.

Court of Appeals of New York.

Oct. 15, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Martha Stronge against the Supreme Lodge, Knights of Pythias. From a judgment in favor of the defendant, affirmed by the Appellate Division by a divided court (97 N. Y. Supp. 661,111 App. Div. 87), plaintiff appeals. Reversed, and new trial granted.

S. Livingston Samuels, for appellant.

James C. De La Mare, for respondent.

HISCOCK, J.

While the courts below have take a different view, we regard the controlling question in this case the one whether a member of a mutual benefit association may so procure a beneficiary to be designated and a certificate to be issued to him for a valuable consideration that the member will by such latter circumstance be prevented from exercising the privilege ordinarily possessed in such an association of changing his beneficiary as often as desired. Our view is that he will be prevented from changing and canceling the designation of the beneficiary who has been made such for a valuable consideration.

The facts which present and lead to the consideration of this question are as follows: One Irvine was a member of the Endowment Rank, Knights of Pythias. He was living in New York, and was seriously sick. He made an agreement with his sister-in-law, the appellant, which is evidenced by the testimony of herself and her husband and by some other testimony, that if she and her husband would give up their home in New York and take a cottage in New Jersey and take him along, and if the appellant would nurse and take care of him while he chose to remain with them, he would make her the beneficiary in his certificate in the association in question. This arrangement was carried out, and, while Irvine desired to, he lived with his sister-in-law and was nursed and cared for by her. A few days after the agreement was made the certificate in suit was taken out, naming appellant as beneficiary, and was delivered to her and ever since has remained in her possession. Subsequently Irvine went to Texas, and thereafter attempted to cancel the designation of appellant as beneficiary and to substitute another person. The by-laws of the association provided that a change of beneficiary might be made at any time and as often as desired, the consent of existing beneficiaries not being required; also, in substance, that the application for change should be made to and passed upon by the ‘board of control,’ and ‘in case a member desiring to change his beneficiary should (shall) be unable to surrender the original certificate then in force by reason of any act or refusal of the beneficiary named therein or fraud or other cause, the board of control might (may) issue a new certificate on proof of the facts by affidavit of the member and the execution by him of such instruments of release or indemnity as should (shall) be deemed necessary.’ The certificate issued to appellant provided ‘that the beneficiary herein designated shall acquire no interest whatever in the certificate nor in the indemnity fund until the benefit shall have lawfully accrued by reason of the death of said member, and no subsequent change in the beneficiary shall have been made.’ When Irvine attempted to cancel the designation of appellant and designate a new beneficiary, the latter refused to give up the certificate which had been delivered to her, and therefore the former was unable to comply with the regulations of the association by delivering the old certificate in connection with his application for a new one. He, however, submitted such letters and affidavits that in accordance with the by-laws he would naturally be entitled to a new certificate upon giving indemnity, and he was informed that, if he would forward a bond in an amount specified, his application for a new certificate would doubtless be passed upon favorably. He died, however, before complying with this requirement.

It has been claimed and thus far held in effect that Irvine had a perfect right to designate a new beneficiary, that he did all that was in his power to accomplish such new designation,and that he was prevented from complying with the requirement for a surrender of the old certificate by the wrongful refusal of the appellant to deliver the same up, and that within the principles of Lahey v. Lahey, 174 N. Y. 146, 66 N. E. 670, 21 L. R. A. 791, 95 Am. St. Rep. 554, such wrongful act of appellant should not be allowed to prevent the new designation, but that the same should be regarded as having been made. It is urged in behalf of the appellant in this connection that this case differs from the Lahey Case, in that Irvine had the right which the member there did not have, of securing a new designation in spite of the fact that he did not produce the old certificate by giving a bond of indemnity, and that, therefore, his application should not have the benefit of the principles which were applied in that case. It is also said that the person whom Irvine desired to designate in the place of appellant did not occupy such relationship to him as would permit her designation. Because of the view which we take upon the other question already mentioned, we shall assume, without now deciding, that Irvine desired to designate a proper person, and that what he did and attempted to do in the way of making such designation would have brought him within the principles of the Lahey Case if appellant's conduct in refusing to give up her certificate was without justification and wrongful. Of course, if it was not without justification and wrongful, then the fundamental fact is lacking which served as the basis for the Lahey decision, ans so we come directly to the consideration of her conduct.

As we judge of the proceedings upon the trial, there was no dispute either in testimony or argument that the contract claimed in behalf of appellant with Irvine was made. The case was apparently tried by the counsel for the respondent, as it has thus far been decided, upon the theory that such contract was immaterial. There was no cross-examination either of the appellant or of her husband upon this point. As already stated, their evidence was corroborated by other testimony and circumstances. It is true that respondent put in evidence without objection some letters by Irvine to the association which denied appellant's present claim that she acquired the certificate for value, These documents, however, were competent evidence under the other defenses urged by respondent, and they were received after the statement by its counsel that ‘We have no evidence to contradict it’; that is, the claim of a designation for...