
    David Stewart, Respondent, v. Robert S. Thorburn, as President of the Amalgamated Society of Carpenters and Joiners, Appellant.
    First Department,
    February 4, 1916.
    Insurance — fraternal benefit association — amendment of by-laws to reduce benefits — rights of members governed by by-laws existing when membership acquired — by-laws construed—injurynot reducing earning capacity — erroneous charge — practice — suit against foreign unincorporated association having local branch—parties.
    A fraternal mutual benefit association cannot by an amendment to its constitution or by-laws destroy or diminish benefits which it contracted to give its members when they became such, even though a general power to amend be expressly reserved.
    The above rule is not changed by section 232 of the Insurance Law (as added by Laws of 1911, chap. 198) relating to fraternal beneficiary societies organized under foreign laws doing business in this State.
    Although the by-laws of a fraternal benefit association entitled the plaintiff to $350 where an injury incapacitated him for life from earning full wages, and although subsequent amendments reducing the amount payable are ineffective as to him, he cannot recover the amount where the evidence does not show that an injury resulting in the loss of one eye actually caused him any loss of wages.
    In an action to recover the benefit prescribed for injuries incapacitating a member from earning full wages, it is error to charge in substance
    
      that under the rules of the society the plaintiff, having lost one eye, was entitled to $850, although the other eye was perfect, for it authorized the jury to award that damage on mere proof that the plaintiff had lost an eye. Especially is this so where the benefit prescribed for the loss of an eye, which was not adopted until after the plaintiff became a member and was thus inapplicable under the rule aforesaid, placed the amount of such injury at $250 instead of $350.
    Where such fraternal benefit association, unincorporated, has its principal office in England, and has a United States branch with a local president, the plaintiff, in order to obtain a judgment against the society itself, should bring the action against the foreign president or treasurer, though, if the plaintiff claims that the members of the United States branch are liable for the full amount, the action may be brought against the local president.
    Appeal by the defendant, Robert S. Thorburn, as president, 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 Yth day of April, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.
    
      Charles Maitland Beattie [Theodore Du Moulin with him on the brief], for the appellant.
    
      William Hauser, for the respondent.
   McLaughlin, J.:

Action by a member of the Amalgamated Society of Carpenters and Joiners, a fraternal benefit association, to recover an accident benefit of $350. The society is an unincorporated voluntary association of over seven members, having its principal office at Manchester, Eng., and maintaining here what is known as the United States branch, with Thorburn as its president.

The plaintiff became a member of the society on the 21st of April, 1886, at which time he received a copy of the constitution or rules then in force, which were called “Rules, Edition of 1883.” Rule 38 of these rules provided, in substance, that in the event of an accident which totally incapacitated a member for life from following his employment as a carpenter and joiner, he should be entitled to a benefit of $700, and for an accident which incapacitated him for life from earning full wages, $350. The term “wages ” is defined in the rules as the ordinary rate of wages paid to carpenters and joiners in the town or district in which the accident occurs. Rule 52, subdivision 2, of the rules of 1883 provided that “New rules shall be made when required, or the existing rules rescinded or altered if necessary, by the votes of the majority of those members who are present at special branch meetings summoned for that purpose.” This provision, however, must be read in connection with subdivision 1 of the same rule, which provides that in case the rules are changed, “No member shall be deprived of any right or privilege which he became entitled to under the Code of Rules which were in operation at the time when he joined this Society.”

The rules were amended in 1893, by which the total disability benefit was reduced from $700 to $500, and the partial disability from $350 to $250, with an additional provision that “Any member not disentitled according to rule, losing one eye (although the other may be perfect) shall be entitled to the partial accident benefit.” The rule, as thus amended, contained a provision similar to the rules of 1883 to the effect that no member should be deprived of any benefit to which he became entitled under the code of rules which were in operation at the time when he joined the society. A further amendment was made in 1911 by eliminating the partial disability benefit, but a similar provision was inserted that the amendment did not apply to those who had previously become members of the society. The amendments of 1893 and 1911, by reason of the exceptions referred to, did not apply to the plaintiff, since he became a member, as indicated, in 1886. If they were intended to apply to persons who became members of the society prior to the time the amendments were passed they would be ineffectual for that purpose because the rule is well settled that a mutual benefit association cannot, by an amendment of its constitution or by-laws, destroy or diminish benefits which it contracted to give to its members when they became such, even though a general power to amend be expressly reserved. (Green v. Royal Arcanum, 206 N. Y. 591;

Wright v. Knights of Maccabees, 196 id. 391; Ayers v. Order of United Workmen, 188 id. 280.) Nor does section 232 of the Insurance Law (Consol. Laws, chap. 28 [Laws of 1909, chap. 33], as added by Laws of 1911, chap. 198), upon which the appellant relies, change the situation in any respect. To hold otherwise would, in effect, accord to the Legislature power to destroy contract obligations legally entered into prior to the passage of the act. (Ayers v. Order of United Workmen, supra.)

On September 9, 1911, the plaintiff, while working at his trade in New York city, met with an accident which resulted in the loss of his right eye. He thereafter presented a claim to the society for $350, the partial benefit provided for in rule 38 of the rules of 1883. The claim was rejected and thereupon this action was brought. The appellant contends that the plaintiff was not entitled to recover the partial benefit since that was abolished by amendment of the rules prior to the time plaintiff was injured, and, also, that the plaintiff was not by the accident prevented from permanently earning full wages. The trial court held, and I think properly, that defendant’s liability for partial disability benefit was not abolished so far as plaintiff was concerned by any amendment made subsequent to his becoming a member of the society, and the sole question was then presented to the jury to determine whether the accident incapacitated plaintiff from earning full wages. It rendered a verdict in favor of the plaintiff for $350, and from the judgment entered thereon defendant appeals.

I am of opinion that the judgment must be reversed. The evidence does not satisfactorily show that the plaintiff suffered any loss of wages by reason of the incapacity complained of.

I am also of the opinion that the court erred in charging the jury that under the amendment of 1893 “Any member not disentitled according to rule (and the plaintiff is such a member) losing one eye, although the other may be perfect, shall be entitled to partial accident benefit in the sum of $350.” Under the amendment of 1893 for the loss of an eye a member was entitled to only $250 instead of $350. But those rules had no application for the reasons heretofore indicated, since the same were not in force at the time plaintiff became a member, and the same were repealed prior to the time the accident occurred. The charge in this respect was, in effect, an instruction if the plaintiff had lost an eye to award him. $350 therefor.

In conclusion it may not he out of place, since there must be a new trial, to call attention to the fact that the action is brought and the judgment rendered against Thorburn as president of the Amalgamated Society of Carpenters and Joiners, whereas the allegation in the complaint and the proof at the trial was that he was not the president of the society but only the president of its United States branch. If the plaintiff is seeking to obtain a judgment against the society and not its United States branch, then he should have brought his action against the president or treasurer of the society and not of the branch. (Code Civ. Proc. § 1919.) If, however, it is the plaintiff’s claim that the members of the United States branch of the society are liable for the full amount, then the action should be brought against Thorburn as president of the branch.

The judgment appealed from is, therefore, reversed and a new trial ordered, with costs to appellant to abide event.

Clarke, P. J., Laughlin, Scott and Page, JJ., concurred.

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