
    GEORGE T. PATTERSON, Plaintiff v. THE MUTUAL LIFE ASSOCIATION OF AMERICA, Defendant.
    
      Submission of controversy upon facts agreed on under chapter 11, title 2, article 2, Code Civil Procedure—Jurisdiction of court.
    
    Where on the facts presented the only judgment that the court can give that would be at law effectual would be a judgment for an injunction, the court has no jurisdiction and must dismiss the proceedings with costs. So Held, where the sole question presented was whether a Mutual Life Association had a right to levy a certain assessment, the only fact in relation to which, which was stated in the agreed case, being that the Association claimed the right to make the assessment.
    Before Freedman, Truax and Ingraham, JJ.
    
      Decided November 5, 1890.
    This point was not presented or argued by counsel,
    Controversy submitted under section 1279 of the Code. The facts sufficiently appear in the opinion.
    
      Joseph Kunsmann, attorney and of counsel, for plaintiff.
    
      Clifford A. H. Bartlett, attorney and of counsel, for defendant.
   By the Court.—Ingraham, J.

This is a controversy submitted upon an agreed statement of facts for the parpóse 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 section 1281 of the Code it is provided, that if the statement of facts contained in the case is not suffb cient 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 section 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 Co. v. Voorhis, 104 N. Y. 528, 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 authorizes the parties to a question in difference which might be the subject of an action to agree upon a case containing a statement of the 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 section 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 section 1281 prohibits.

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

Freedman and Truax, JJ,, concurred.  