
    George T. Patterson, Pl’ff, v. The Mutual Life Association of America, Def’t.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed November 3, 1890.)
    
    1. Submission of controversy.
    Where the only proper judgment that can be rendered on the facts stated is an injunction, the submission should be dismissed.
    3. Same.
    No question was made as to the right of plaintiff to recover the amount of the certificate, the only point in controversy being the right of defendant to lay an assessment for its payment, defendant claiming to have such right. Held, that the only controversy that could possibly be the subject of an action would be to restrain defendant by injunction from making the assessment, and that is prohibited by § 1381 of the Code.
    Controversy submitted under § 1279 of the Code.
    
      Joseph Kunzman, for pl’ff; Clifford A. H Bartlett, for def’t.
   Ingraham, J.

This is a controversy submitted upon an agreed statement of facts for the purpose of procuring a judgment as to the right of the defendant to assess the amount that they would be required to pay upon the death of one George T. Patterson, a member of the association.

By § 1281 of the Code it is provided that if the statement of facts contained in the case is not sufficient to enable the court to render judgment, an order must "be made dismissing the submission, without costs to either party.

This case comes within this provision, and it is impossible for the court on the statement of facts contained in the case to render any judgment authorized in such a proceeding.

The question that the court is asked to determine involves a construction of § 23 of the by-laws of the association, which is substantially ^reproduced in the certificate issued to its members.

That section provides “ that the relief fund above $100,000 may be applied to the payment of claims in excess of the American Experience Table of Mortality.”

Both parties conceded that the plaintiff is entitled to recover from the association the amount named in the certificate, and the only point in controversy is as to whether or not the association has the right to cause an assessment to be levied upon the members of the association to pay that claim. No such assessment has yet been levied, and the only fact in relation to such assessment that is stated in the submitted case is that the association claims the right to make such an assessment.

The only judgment, therefore, that the court could give that would at all be effectual would be an injunction restraining the association from making such an assessment.

In the case of the Cunard Steamship Company v. Voorhis, 104 N. Y., 528; 5 N. Y. State Rep., 736, it was held that in such a case the court had no jurisdiction to decide the controversy or render judgment on the merits; section 1279 of the Code authorized the parties to a question in difference, which might be the subject of an action, to agree upon a case containing a statement of facts upon which the controversy depends, and present the same to the court. Such a question must be one which might be the subject of an action, and § 1281 expressly prohibits any relief by injunction. Now on the facts presented the only controversy that could possibly be the subject of an action would be to restrain the defendant by injunction from making the assessment, and that § 1281 prohibits.

I think, therefore, that this court has no jurisdiction, and that the proceedings must be dismissed, without costs.

FREEDMAN-and Tritax, JJ., concur.  