
    Jennie Roberts, Respondent, v. Lily Cohen, Appellant, Impleaded with Grand Lodge of the Ancient Order of United Workmen of the State of New York.
    
      Beneficiary of a fraternal benefit association—a designation once made cannot be • rendered ineffective by am, amendment of the by-law or by statute—what by-law and statute are not retroactive.
    
    Where a member of a fraternal benefit association, upon applying for membership, designates as his beneficiary a friend in no wise related to him, as he might properly do under the act of -incorporation and by-laws then in force, neither the association by an amendment to the by-laws, nor the Legislature by an amendment to the act of incorporation, has power to require him to designate a new beneficiary who shall bear a specified relation to him, notwithstanding that in his application for membership the member agreed “ to strictly comply with the constitution, laws and regulations which are or may hereafter be enacted.”
    Amendments to the by-laws and to- the- charter are not retroactive and do not affect certificates issued prior to the time when such amendments went into effect.
    Appeal by the defendant, Lily Cohen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of' the county of New York on the 26th day of January, 1901, upon the decision of the court rendered after a trial at the New York Special Term.
    The action was brought to recover of the defendant corporation, a fraternal beneficiary organization, the sum of $1,000, alleged to be due the plaintiff as -the wife of Nathan Roberts, deceased, who, at the time of his death on August 20, 1899, was a member of the society in good standing. The defendant, Lily Cohen, was joined for the reason that she claims to be entitled to the same sum by a designation made by Roberts in his lifetime.
    It appears that on November 28,-1890, Roberts, being then unmarried, made application for membership in the corporation, and directed that of the fund to which he would be entitled at his death, $1,000 should be paid to his daughter and the other $1,000 to Lily Cohen, a friend. In his application for membership he agreed “ to strictly comply with the constitution, laws, and regulations which are or may hereafter be enacted,” and agreed- in his application for a beneficiary certificate “ that compliance on my part with all the laws, regulations and requirements which are or may be enacted by said Grand Lodge, is the express condition upon which I am to be entitled to participate in the Beneficiary Fund.” The certificate' itself bears the words, “ This certificate is issued upon the express condition that said Nathan Roberts shall in every particular while a member of said order comply with all the laws, rules and requirements thereof.” The by-laws in existence at the time the certificate was issued provided that “ the Grand Lodge Guarantees * * * the payment of the sum of two thousand dollars to such person or persons as he shall while living have designated pursuant to this article * * * provided that such members shall have fully complied whilé living * • * * with all the laws, rules and-regulations * * * which now are in force or may hereafter be enacted by this Grand Lodge.” And the act of incorporation then existing (Laws of 1877, chap. 74) provided that “it shall be lawful for the corporation to create, hold, manage and disburse a beneficiary fund * * * under such regulations as may be adopted by said corporation. * * * Such beneficiary fund * * • *' may be set apart and provided to be paid over to the families, heirs or representatives of deceased * * * members or to such person or persons as such deceased member "may, while living, have directed; and the collecting, management and disbursement of the same, as well as the person or persons to whom * * * the same shall be paid on the death of a member shall be regulated and controlled by the rules and by-laws of the corporation.”
    The plaintiff was married to Nathan Roberts on September 19, 1894, and she continued to be his wife until his death in 1899. In March, 1898, a new by-law was passed, providing that “ each member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall in every instance be one or more members of his family, an affianced wife or some one related to him by blood or who shall be dependent upon him.” There was included also a clause that if the member died without a beneficiary named who could take the fund,.-it should be paid to his widow. On March 4, 1898, a notification was sent to Roberts calling his attention to the new regulation- and to the fact that he had ■designated Lily Cohen, who was in no wise related to him, and requesting him to make a redesignation. This he never did.
    
      In April, 1898, an act was passed by the Legislature (Laws of 1898, chap. 437) amending the incorporation act of the society by providing that the manner of payment of the beneficiary fund should “ be regulated and controlled only by the laws, rules and regulations of said corporation as the same exist and are in force at the time of the death of any member * * * with full power * * to alter, ainend, change and. enact from time to time any and all laws, rules and regulations with reference to the collecting, management and disbursement of said beneficiary fund, and the payee or-payees to be named by any member of said corporation, without any notice thereof in any particular. * * * And the provisions of this section shall * * * govern'and control each and every beneficiary certificate heretofore written or issued.”
    The court at Special Term held that, as it was admitted that Lily Cohen did not come within the class named in the recent by-law, the widow of the deceased was entitled to receive of the defendant corporation the $1,000 due and unpaid. From the judgment thereupon entered in plaintiff’s favor the defendant Lily Cohen appeals.
    
      Jacob W. Kahn, for the appellant.
    
      I. B. Ripin, for the respondent.
   O’Brien, J.:

In Sabin v. Phinney (134 N. Y. 423, 428) it was said: “ The statute under which the corporation was organized, its by-laws, together with the application for and the certificate of membership, constituted the contract which existed between the member and the society, which instruments, construed together, measure the rights of these litigants.” In that case the by-laws imposed no limitation on the persons to whom the certificate should be payable, and thereunder the appointee was changeable from time to time as the member might elect. Accordingly, it was held that the appointee first designated acquired no vested right to the sum payable which would prevent the member from changing the beneficiary. This decision, however, upon which so much reliance was placed by the learned judge at Special Term, does not seem to us to have any controlling effect or bearing upon the facts here appearing, but, on the contrary, in principle, we think it favors the view for which the appellant contends.

It is conceded that under the act of incorporation and by-laws, together with the application for the certificate of membership, which made the contract. between Roberts and the defendant, corporation, he had the right at the time to - designate as appointee the defendant Lily Cohen,, and we fail to see how, without the consent of the member, this contract, which was valid at its inception, could be impaired or destroyed either by the Legislature or the society. Recognizing this principle of the sacredness of- contract, the theory upon which-the abrogation of these contract rights is said to rest is, that such designation of Lily Cohen, though valid when made, was rendered ineffective by the agreement between the member and the society, giving to the latter power to change the by-laws, and, such change having been made, the rights of these claimants to the fund must be governed by the regulations in force when the member died.

.The answer to this contention is obvious. The by-laws of a society must be fair and equitable and consistent with its charter. Whether, under a right reserved to alter them, a society can impair or destroy a contract valid when made, is open to question. Here, however, under the act of incorporation of the' society-—which 'must be regarded as the law -of its being — no right was originally reserved and no power given to the grand lodge to pass any regulation affecting the designation of beneficiaries. It is true that the charter was amended years after the certificate was taken out, and in this aspect the question is again presented, how far the Legislature ' or the action of the society based thereon could affect vested rights. A member having the right could change the beneficiary, but his failure to exercise such privilege, whether from disinclination or neglect, did not give the society the right to make another designation without his consent, unless such right was expressly conferred upon the society.

Apart from this, however, there is another ground upon which the appellant may confidently rest, her case. Assuming that the grand lodge had power to pass the by-law limiting the class of beneficiaries, such by-law did not affect the certificate of Roberts, nor by reason thereof was he required to change^ the beneficiary, because it was not retroactive. There was nothing -therein requiring a member who had previously made a designation to change his beneficiary, nor was there anything in its language which extended it so as to operate upon certificates which had been previously issued.

An instructive discussion of the question and of the identical by-law here involved will be found in the case of Wist v. Grand Lodge A. O. U. W. (22 Oreg. 271), referred to with approval in Spencer v. Grand Lodge (22 Misc. Rep. 147), which latter decision was affirmed without opinion in 53 Appellate Division, 627. The following from the .Oregon case was quoted and approved in the Spencer case: “ The law does not undertake, by its terms, to disturb what has been done; it does not nullify previous appointments. * * * It is a settled rule of construction that laws will not be interpreted to be retrospective unless by their terms they are clearly intended to be so; they are construed as operating only on cases or facts which come into existence after the laws were passed. * * * Rights will not be interfered with unless there are express words to that effect. It is not enough that upon some principles of interpretation a retroactive construction could be given to the law, but the intent to make it retroactive must be so plain and demonstrable as to exclude its prospective operation.”

Upon the ground, therefore, that neither the by-law in question nor the amendment of the charter was retroactive, the original designation, which was valid when made and was never changed by the member, is controlling, and as thereunder the appellant Lily Cohen was the beneficiary named, she is entitled to the sum due from the society.

The judgment accordingly should be reversed, with costs, and as there is no dispute as to the facts and no advantage could result from a new trial, judgment should be ordered for the appellant, with costs.

Van Brunt,-P. J., Patterson and McLaughlin, JJ., concurred.

Judgment reversed, with costs, and judgment ordered for the appellant, with costs.  