
    Frank Slavik, Respondent, v. The Supreme Lodge of all Bohemian Ladies’ Aid Societies, Appellant.
    (Supreme Court, Appellate Term,
    May, 1908.)
    Fraternal and mutual benefit associations — Insurance contract — Construction of contract in general — Construction by parties..
    The constitution of a ladies’ mutual aid society, one of whose objects it was in case of a member’s death to pay to the “ survivors ” such money as might be designated, provided that “ if any sister does not leave a will, husband or children, the law of inheritance of the State shall govern with the modification hereinafter mentioned,” and further provided that “If a sister dies who does not live with her husband and he does not properly care for her, such husband cannot ask for any death benefit from the lodge. In such case her children are entitled thereto or such persons to whom the sister wills it. * * * A sister who does not live with her husband, must make a last will and shall turn the same over to the lodge for safe keeping ”; but there was no provision in said constitution forbidding the designation of beneficiaries other than husband or children. A sister, who in her application for membership designated as beneficiaries of a death benefit of $600 several cousins in various sums aggregating $500 and the balance to her husband, died leaving no children.
    Held, that the husband, who it was admitted lived with the deceased up to the time of her death and properly eared for and supported her, was not a “ survivor ” of his deceased wife within the meaning of that term as used in the constitution of the defendant society and was not entitled to recover the $500 made payable to the cousins.
    It was competent for the defendant to prove that designations made by a deceased member were generally recognized by it and that the method of procedure seemingly pursued when the deceased became a member of the society was usually recognized by the defendant, and that printed blanks conforming thereto were in use; and, in the absence of proof that there was no express prohibition in the constitution or by-laws or contract between the parties against the designation of the deceased’s cousins as beneficiaries, it was error to exclude such testimony when offered.
    In such a case where the language of the constitution appears to be inexact and uncertain the construction of the parties as to its meaning should control.
    
      Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court" of. the city of New York, sixth district, borough of Manhattan, after a trial before the court without'a jury.
    Ira B. Wheeler, for appellant.
    Hymes, Woytisek & Schaap (Michael Schaap, of counsel), for respondent.
   Greenbaum, J.

The defendant is a mutual aid society, duly incorporated under the laws of this State.

The plaintiff was the husband of one Barbara Slavik, deceased, who, at the time of her death on June 11, 1907, was a member in good standing of Lodge Cechie Ho. 4, a subordinate lodge of defendant. It is conceded that -the amount of the death benefit payable by the defendant was $600- and that, before the commencement of this action, plaintiff had received $10 0i thereof. He now seeks to recover the balance of $500.

On May 28, 1907, Barbara Slavik signed an application for a certificate on a blank printed form, ostensibly furnished by the defendant, duly filled out in writing at the appropriate places, wherein she designated the distribution of said $600, in case of her death, to several cousins, in various sums aggregating $500, and the balance of $100 to her husband, the plaintiff. The application was witnessed in writing by the president and secretary of the lodge.

It also appears that, under date of Miay 28, 1907, a formal certificate, partly printed and partly written, characterized as a “ ¡Relief Fund Certificate,” was issued to the sister, Barbara Slavik, duly signed by the supreme president and the supreme secretary and countersigned by the president and secretary of the subordinate lodge, with the seal of the defendant impressed on an imposing looking red wafer.

Plaintiff claims that, notwithstanding his apparent exclusion from participation in $500 of the death benefit fund, the designation was void and ineffective, and that he alone is entitled to the entire amount; and the learned court below so held.

The several provisions in the constitution of the society, affecting the rights of sisters with respect to the benefit fund in question, are: Section 2. To give to a sister in case of death of her husband, money benefit and in case of the sister’s death to pay to the survivors such moneys as may be designated in the constitution in not longer than ninety days.”

Section 27. “ If any sister does not leave a last will, husband or children, the law of inheritance of the State shall govern with the modification hereinafter mentioned.” Section 28: If a sister dies who does not live with her husband and he does not properly care for her, such husband cannot ask for any death benefit from the lodge. In such case her children are entitled thereto or such persons to whom the sister wills it. * * * A sister, who does not live with her husband, must make a last will and shall turn the same over to the lodge for safe keeping.”

Section 28 would appear to be an imperfect expression of intention to exclude a husband not living with or supporting his wife from any participation in the death fund.

There is no provision forbidding the designation of beneficiaries other than husband or children.

Indeed, there is no express language as to the persons entitled to the death benefit, other than that already quoted, to wit, in case of the sister’s death ” it shall be paid “ to the survivors ” as designated in the constitution.” Who are meant by “ survivors ” is not defined, and it is not apparent that there is anything in the constitution that throws any further light upon the subject.

In the case at bar the deceased left no children, and it is admitted that plaintiff lived with her up to the time of her death and that he properly cared for and supported her.

It is therefore argued that plaintiff was the only survivor of his deceased wife and hence the only one under the organic law of the society entitled to be the beneficiary of the death benefit fund.

The word “ survivors,” as used in the context, is too vague necessarily to refer to surviving husband or children of a deceased member.

Considering the inexact use of language generally employed in the constitution of the defendant, it would seem proper to interpret the word “ survivors ” as the parties to the contract construed its meaning.

The membership of the deceased Barbara Slavik was based upon a contractual relationship between her and the defendant, and the practical construction of this contract by the parties thereto should control. Of this rule plaintiff has no right to complain, for he is neither a party to the contract, nor had he any vested right thereunder as a beneficiary. Collins v. Collins, 30 App. D-iv. 341.

As between the parties to the contract it is in evidence that, upon the application of the deceased member, a certificate was formally issued upon her request describing the beneficiaries and the respective shares to be paid to them upon her death.

It was competent for the defendant to prove that such designations as were here made hy the deceased member were generally recognized by the defendant, and that the method of procedure here seemingly pursued was usually recognized by the defendant, and that printed blanks for that very purpose were in use.

It was error to exclude the proffered proof of defendant applicable to this branch of the case, in the absence of proof that there was no express prohibition in the constitution and by-laws or contract between the parties against the designation of the beneficiaries and the issuance of the certificates established in this case. Collins v. Collins, supra, 344.

Indeed, it is inferable from the proofs that the procedure pursued was in conformity with the practice of defendant.

The point made by the respondent, that the constitution refers to the necessity of a member making a “ will ” in certain contingencies and that, therefore, a designation is forbidden, is stripped of force by the stipulation that the word “ will ” in section 28 may be properly translated as “ designation,”— further evidence of the uncertain language of the constitution and an added reason why the construction of the parties as to the meaning of the contract should control.

The plaintiff upon the proofs did not establish a cause of action, and the judgment should be reversed.

Gxldeksleeve and Giegerich, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  