
    James Maxwell, Appellant, v. The Theatrical Mechanical Association, Respondent.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Fraternal and mutual benefit associations: Insurance contract — Constitution and by-laws of association as part of contract — Amendments; Actions for benefits — Presumptions and burden of proof — Presumption as to regularity of amendment to by-laws.
    The constitution and by-laws of a purely voluntary association which provides for the payment of sick and funeral benefits to its members, constitute the contract between them; and, if not illegal, immoral-or contrary to public policy, they must be upheld, whether reasonable or not.
    An amendment to the by-laws of such an association, adopted at a stated meeting at which many of the members were present and by many more votes than were required to make it valid, will be presumed to have been regularly proposed by a member in good standing as required by the by-laws.
    Where such an association has the power to amend its by-laws the right of a member to sick benefits is subject to change or modification as to the conditions upon which they shall be paid.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan.
    Cornelius P. Kitchel, for appellant.
    Marx & Byrne, for respondent.
   Fitzgerald, J.

The plaintiff appeals from a judgment in favor of the defendant. The defendant is a voluntary association which provides for payment of sick and funeral benefits to its members. The plaintiff became a member in 1887. What the provisions of the defendant’s constitution and by-laws were then does not appear. Upon the trial there was offered and received in evidence a copy of the constitution and by-laws adopted June 3, 1904, to take effect January 1, 1895, and we will assume that the plaintiff subscribed to such constitution and by-laws. When adopted, the bylaws, article X, section 2, provided that every beneficial member “ who has been a member for six months, and is in good standing, who shall become sick * * * shall be entitled to the sum of $7 sick benefit for every seven days during the duration of such sickness.” ' Article X, section 5, - provides that “ in ease a member shall continue on the sick list for twenty weeks in any one twelve months, no further sick benefits shall be paid, unless * * *.” Article X, section 6, provides that “ no member who is indebted to this association to the amount of $1.50 for dues, fines or other indebtedness, shall be entitled to receive benefit money until thirty days after all arrears are paid.” Prior to March 1, 1906, the plaintiff was in arrears for dues. On that day he paid said dues and, on March 16,. 1906, was taken ill. The illness continued until June 16, 1906, and plaintiff brought this action to recover the weekly benefit accruing during that time; and the court below rendered judgment in favor of the defendant. The defendant claims that it was relieved from payment of sick benefits by reason of the adoption, in June, 1904, of an amendment to its by-laws, which amendment reads as follows: “Any member who is indebted to this association to the amount of $1.50 for dues, fines or other indebtedness shall not be entitled to sick or funeral benefits for any illness which' existed or commenced within thirty days after paying up his arrears.” This bylaw was passed by virtue of the provisions of article XV, which declares that “ no amendment Shall be made to the constitution and by-laws unless made by a member in good standing * * * and that no such alteration, amendment or appeal shall be made without the concurrence of three-fourths of the members in good standing then and there present.” The appellant claims in substance that the by-law is unreasonable and therefore void; that there is no evidence that it was properly and legally adopted by the defendant; that, if enforced, it deprives the plaintiff of a “ vested right.” Some confusion has evidently arisen among practitioners regarding the right of the court to determine the question of the reasonableness of a by-law of an association of this character. In a purely voluntary association, the constitution' and by-laws are the contract between the parties; and, if their provisions are not illegal, immoral or contrary to public policy, they must be upheld whether reasonable or not; for parties have the right to enter into unreasonable and unwise contracts, so long as such contracts are not illegal and are fairly made. Hess v. Johnson, 41 App. Div. 465; Kehlcnbeck v. Logenen, 10 Daly, 447;. Ulmer v. Minster, 16 Misc. Rep. 42; Cunniff v. Jamour, 31 Misc. Rep. 729; Saerwein v. Jamour, 32 id. 701; Leahy v. Mooney, 39 id. 829; Shafer v. United Brotherhood of Carpenters, 22 id. 363; Jennings v. Chelsea Division, etc., 28 id. 556; Rubino v. Fraterna Assn., 29 id. 339. The courts have invariably distinguished between the by-laws of corporations and those of voluntary associations. “ It is a governing rule with regard to corporations that their by-laws must be reasonable, and all which are vexatious, oppressive or manifestly detrimental to the interests of the corporation are void.” Angell & Ames Corp., § 347; Carlin v. Father Matthew Assn., 2 Daly, 20; Hess v. Johnson, supra Hart v. Adams Cylinder & Web Press P Assn., 69 App. Div. 578; Kennedy v. Local Union, 75 id. 243. Following these decisions, therefore, with the question of the reasonableness or unreasonableness' of the by-law under consideration this court has nothing to do. The laws of the society are to be considered in determining the rights of the parties and they are to govern. There is no question but that the amendment to the by-laws under consideration* was adopted at a stated meeting in June, 1904. The plaintiff claims that it was not shown that the amendment was offered by a member in good standing, as required by article XV of the by-laws. The evidence was sufficient to show that such amendment was adopted at á stated meeting at which many of the members were present, and that such amendment was passed by many more votes of those present than were required in order to make it valid. The presumption is that it was regularly proposed by a competent member of the association (Lawson Presump Ev., §§ 60-67) and it de volved upon the plaintiff to prove otherwise. Moreover, when the defendant attempted to introduce evidence that the member who introduced the amendment wa's in good standing, such evidence was excluded by objections made by the plaintiff; and he cannot now be heard to complain of such lack of proof. Was the effect to deprive the plaintiff of any vested right? To answer this question, we must consider the rights that were given the plaintiff by virtue of his membership. As before stated, the defendant is a voluntary association, and a member of a beneficial society does not stand in the relation of a creditor to it and can only claim such benefits as are prescribed by the by-laws at the time he applies for the relief. St. Patrick’s Male Soc. v. McVey, 92 Pa. St. 510. The power to amend the by-law is as much a part of the contract as is the by-law itself. Poultney v. Bachman, 31 Hun, 49. In Stohr v. San Francisco Musical Fund Soc., 82 Cal. 557, the court said: The term vested right is often loosely used. In one sense every right is vested, if a man has a right at all it must be vested in him otherwise how could it be a right ? The moment a contract is made a right is vested in each party to have it remain-unchanged and to have it performed. The term, however, is frequently used to designate a right which has become so fixed that it is not subject to be divested without the consent of the owner, as contradistinguished from rights that are subject to be divested without his consent * * *. In the present case the plaintiff can have no right to have the contract remain unchanged, because, - as we have seen, the contract provided that it may be changed. Nor has he a right to remain unaffected by any change -that may be made. * * *. If the plaintiff had any right which is so fixed that it is not subject to change, we think it can only be- to the fruits ripened before the change was made, in other words to such sums as became due before the new by-law was adopted. This is all that we think can be meant by ‘ vested right ’ in a case like the present.” The foregoing words apply to the situation at bar. When the plaintiff became a member of the defendant association, he subscribed to the constitution and by-laws, and thus became a party to a contract, which gave the association the right to amend its by-laws in a manner provided for therein and followed when the amendment of June, 1904, was adopted. His right to sick benefits was subject to change or modification by an amendment, and he has consented that such amendments may be made. When we consider that the association remains liable to its members for at least sixty days when they are delinquent in payment of dues, a provision that, after payment of arrearages, a member shall carry his own risk for thirty days is not apparently radically unjust.

Gildersleeve and Goff, JJ., concur.

Judgment affirmed, with costs.  