
    Lucinda King, Plaintiff, v. The Lehigh Valley Railroad Co., Defendant.
    (Superior Court of Buffalo — General Term,
    December, 1895.)
    Bailboads — Benefits to widow ob employee.
    The complaint alleged that the defendant, a foreign railroad company, maintained a fund by voluntary contributions from it and its employees for the benefit of the widow of an employee who contributed thereto and was accidentally killed while in the discharge of his duty; that plaintiff’s husband was a contributor and was so killed, and that such fund was managed by an officer of the defendant and a representative chosen by the employees, and that moneys could be drawn therefrom only by the joint action of such officer and representative. Held, that the complaint did not set forth a cause of action, as the defendant could not be held liable for the- failure of the custodian of the fund to discharge his duty unless it had interfered with his management and control of the fund.
    Demubbeb to the complaint.
    
      Charles J. Oishei, for plaintiff.
    
      Martin Cary, for defendant.
   White, J.:

The complaint states in substance:

1. That the defendant is a foreign railroad corporation operating a railroad in this city.

2. That the defendant has, in connection with certain of its employees, established, and with them maintains by voluntary contributions made by it and its said employees3.a fund for the benefit of the widow "of an employee who has subscribed to the fund and is accidentally killed while in the discharge of his duty.

3. That the plaintiff’s husband was accidentally killed while in the discharge of his duty, and had subscribed to the fund.

4. That the defendant was a contributor to the fund in an amount equal to that contributed by all of its employees.

5. That the fund in question was, by agreement of all parties interested in it, kept in the custody of an officer of the defendant, and by such officer, in connection with a representative of and chosen by the class of employees to which the plaintiff’s husband belonged (in so far as the plaintiff is interested in it), was managed, and moneys from the.fund can be drawn only by the joint action of such officer of the defendant and such representative.

6. That, by the terms of the agreement, under which the fund in question is created and distributed, the plaintiff is entitled to three-fourths of the amount of her husband’s contribution for every working day for two years from the time of his death, to be paid monthly, provided she remains unmarried during that time.

7. That the plaintiff’s husband was killed April 5,1894, and had contributed one day’s wages to the fund. It does not state what his wages were, or how much he contributed.

The relief demanded is that the plaintiff receive three-fourths of the amount of her husband’s contribution to the fund for every working day, to be paid to her monthly from the time of her husband’s death, with costs.

The action seems to have been commenced about July 27, 1894.

Assuming that the facts stated in the conqplaint would constitute a cause of action against the custodian of the fund in question and entitle the plaintiff tó a judgment- either for a certain siim or establishing, her.right, to receive a-certain sum for two years from thé time her husband was killed, providing she remains unmarried,- to my mind there is nothing, whatever in .the complaint showing, -a cause óf action -against the defendant.-. ' . ¡

The defendant neither owns, controls' nor' manages the moneys constituting this fund; there is no allegation that the defendant has any money belonging to. anybody in its pos- . session.- The complaint shows that the money, if there is any,' is held and nianaged by an. officer of the defendant, to;be-sure, but that he -cannot lawfully pay it out except upon an order in which -a chosen- representative of the class "of employees to which the plaintiff’s husband belonged shall join: in giving'it.- '

If the condition of things provided for by the tenth clause of Exhibit A, attached to the complaint, were shown to exist, a question very different from the one we are called upon to consider would be raised; Possibly under sticlr a state of affairs, if the defendant refused to recognize a just claim upon the fund, it might be said that,, having exercised its- rigjht to take exclusive management and control of the fund, it should" be held bound to distribute it in accordance With the provisions of the -law; but until the- defendant assumes that' attitude, it certainly cannot be said that it is liable to any' contributor for the failure of the custodian of the fund agreed upon by all interested in it to' discharge his duty..

The plan under which the fund is created and disbursed does not take any notice of the relations, which may happen to exist between a contributor and his" family,' except, that the 'beneficiary must be the contributor'himself, and,in case of his . death, his widow is entitled to'the benefits. -The question, therefore, as, to whether Or not the plaintiff’s husband was living with of supporting, or was under obligations'to. support her" at the time of his death, would not. seem .to be material. The obligation on the part of those controlling it to pay from the fund in this case is plain if there is money in their hands in which the plaintiff’s husband was interested at the time of his death.

The demurrer should be sustained, with leave to the plaintiff to amend her complaint.

Titus, Oh. J., and Hatch, J., concur.

Demurrer sustained, with leave to amend complaint.  