
    In the Matter of the Application of August W. Schmitt and “ The Order of the International Fraternal Alliance,” App’lts, v. Robert A. Maxwell, Superintendent of Insurance, Resp’t.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    1. Benefit societies — Laws 1889, chap. 530.
    To entitle an association organized under chap. 520, Laws 1889, to a final certificate authorizing it to become a body politic and corporate there must not only be applications for membership from 300 persons, but they, or an equal number, must actually become members.
    3. Same — Mandamus.
    In determining whether the proposed association has in all respects complied with the provisions of the act, the Superintendent of the Insurance Department has a judicial duty to perform, and a mandamus will not lie to compel him to grant the final certificate.
    Appeal from an order of the Albany special term, denying a motion for a peremptory writ of mandamus to compel the superintendent of insurance to issue a final certificate entitling the “The Order of the' International Fraternal Alliance of New York ” "to become a body politic and corporate.
    
      James G. De La Mare, for app’lts; Charles F. Tabor, attorney-general, for resp’t
   Landon, J.

The order of the special term should be affirmed: 1. Because the superintendent, in his opposing affidavits, denies "that the relator has complied with the provisions of § 3, chap. 520, Laws 1889, and the relator, by proceeding to argument without ■controverting the opposing affidavit, admits its allegations. People v. Supervisors, 73 N. Y., 173; People v. Fairman, 12 Abb. N. C., 252; People v. Cromwell, 102 N. Y., 477; 2 N. Y. State Rep., 427.

The relator contends that the denial is apparent rather than real, and that facts stated show that the relator has complied with the provisions of the section cited.

Chapter 520, Laws of 1889, is entitled “ An act in relation to ■fraternal beneficiary societies, orders or associations.” Section 1 provides that any number of persons, not less than nine, may associate together upon the mutual assessment plan and form an association for the relief of its members, as therein afterwards prescribed, and not otherwise.

Section 2 provides a plan for preliminary organization. The .associates shall file in the office of the superintendent of the insurance department a declaration, signed and acknowledged by each of them, which shall express their intention to form the association, its name, method of business, official title of officers, etc.

Section 3 provides that with the filing of the declaration, there shall be filed the sworn statement of three of the corporators that at least two hundred persons eligible to membership under the proposed laws of said association have, in good faith,, made application in writing for membership. This declaration and sworn statement must then be referred to the attorney-general, who, if he find the same conformable to 'the act, shall so certify, and then the superintendent shall record the declaration and certificate, and deliver to the association a certified copy of all of the papers, and also a license to carry on the work of the society as proposed.

It is conceded that thus far the provisions of the act were complied with, and that the superintendent of the insurance department issued the license to the society. Section 3 further provides, “ upon such certified copy and license- or certificate being filed in the office of the superintendent of insurance, and when at least two hundred persons have subscribed in writing to be beneficiary members therein, the total beneficiary amount to be not less than $400,000, and have paid in one full assessment in cash amounting to at least one per cent, thereof, and the superintendent of the insurance department shall have certified that it has complied with the provisions of this act and is authorized to transact business, the said corporators, and those that may hereafter become associated with them or their -successors, shall be constituted a body politic and corporate,” etc.

It will be seen that in order to obtain the preliminary license, at least two hundred persons must first make application for membership, and that after the preliminary license is issued, at least two hundred persons must subscribe in writing to be beneficiary members therein. In the first instance 200 persons must apply for membership,- and when the license “ to cony on the work ” is issued they, or an equal number, must actually become members.

‘ The issue presented by the superintendent of insurance is that after he issued his license the applicants for membership took no further steps to become members, but relied upon their previous application as a sufficient compliance with the act. The papers presented by the relator confirm this position.

2. The affidavit of the superintendent of insurance further-shows that he caused an investigation to be made, and thereby ascertained that the persons who are alleged to have made application for membership are nearly all members of a similar association in the state of Maryland, and that the proceedings taken in this state were with the view to transfer the membership from the Maryland association to the New York association, and that the money paid for that purpose was not paid by the members themselves but by the Maryland association, that such payment, has the appearance of a loan, and that the transactions, which he gives at considerable length, lead him to conclude that the actual membership has not in good faith been entered into, nor has the payment required been made in good faith, and hence he makes the denials set forth in his affidavit. We may accept these denials as his findings of fact.

In discharging the responsible duty of determining whether the proposed association had in all respects complied with the provisions of the act, the superintendent of the insurance department has a judicial duty to perform. The People v. Chapin, 104 Y., 96; 5 N. Y. State Rep., 588; People v. Barnes, 114 N. Y., 317; 22 N. Y. State Rep., 164; People v. Common Council, 78 N. Y., 33. In such a case mandamus will not lie. Id. It is plain that the superintendent was confronted with a grave question of fact, not only judicial in its nature, but one requiring the special facilities and qualifications which that office is presumed to command and possess. Unless he determined it in favor of the society, no occasion for the ministerial duty of issuing the final -certificate exists.

Order affirmed, with costs.

Mayham, J., concurs; Learned, P. J., takes no part.  