
    Regina Grossmayer, Respondent, v. District No. 1, Independent Order of Benai Berith, Appellant.
    
      By-law of a mutual benefit association — when an amendment thereof need not be complied with by a member.
    
    The constitution'and by-laws of a mutual benefit association provided that, on ‘ the death of a member, the endowment should be paid to his widow, children, father and mother, in the order named, and if he left surviving him none of such relatives, to such beneficiaries as he might direct; that if he left neither wife, child nor parents, and failed to designate other persons as his beneficiaries the endowment should fail. Thereafter, pursuant to a provision thereof authorizing it, the constitution and by-laws were amended so as to provide that the endowment should be paid to the member’s widow and children, in the order named, and that a member having neither wife nor child must designate in writing in a book provided for that purpose the person to whom the benefit should be paid’, and that, in the event of the member’s failure to make such designation, the endowment should not be paid.
    
      Held, that the amendment was not applicable to a member who, prior to its enactment, became insane and after its enactment died without recovering his sanity and without having designated his beneficiaries, leaving surviving him a mother, hut neither wife nor children;
    That, as the deceased member’s disability was created by an act of God, and as the act required to be performed could not be performed for him by any other person, his failure to make the designation which the by-laws required did not work a forfeiture.
    
      Semble, that an amendment to a by-law must furnish the person upon whom it is to operate with an opportunity to comply therewith, and if, by the intervention of the vis major, or other equivalent condition, such opportunity is not given, the party will usually be held excused and no forfeiture will result.
    Van Brunt, P. J., dissented.
    Appeal by the defendant, District No. 1, Independent Order of Benai Berith, 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 22d day of April, 1901, upon the verdict of a jury-rendered by direction of the court, and also from an order entered in said clerk’s office on the 8th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Julius J. Frank, for the appellant.
    
      Morris J. Hirsch, for the respondent.
   Hatch, J.:

This action was brought to recover the sum of $1,000 from the defendant, a domestic corporation, alleged to be due the plaintiff from and out of an endowment fund established by the defendant under its constitution and by-laws. The defendant is an order organized for benevolent and philanthropic purposes, and among other provisions it established an endowment fund for the benefit of widows, orphans and parents of the members. The son of the plaintiff, Emanuel Grossmayer, became a member of the defendant order in January, 1891, obligating himself thereby to observe the constitution, laws and rules of the order. At the time said Grossmayer became a member, the constitution and by-laws provided that out of this endowment fund the sum of $1,000 should be paid on the member’s death, first, to his widow; second, to his children,'if he leave no widow; third, to his father, if he leave neither widow nor child; fourth, to his mother, if he leave neither widow, child nor father, and fifth, such beneficiaries as the member might direct, provided he left surviving none of the relatives designated in the 4th provision. The constitution and by-laws further provided that in case the member left neither wife, child nor parents, and failed or neglected to make any designation as to his beneficiaries, the endowment should fail and go into the endowment fund of the district. Provision was made for amending the constitution and by-laws, and in January, 1896, an amendment was duly made of the laws pertaining thereto and the provisions as to the endowment going to the parents in case of the failure of widow or child to survive the deceased member was stricken out. The amendments to the by-laws provide as follows: Sec. 5. Upon the decease of a participant in this fund there shall be paid the amount secured by him respectively: First, to his widow; second, to his children, if there be no widow; but the brother may, by a designation in the book provided for that purpose, declare that the Endowment, or a part thereof, shall be paid to such beneficiary or beneficiaries as he may designate, to the exclusion of his children, provided he leaves no widow. In such case a designation to the executors or administrators of the brother is a valid and sufficient designation.”

“ Sec. 9. A member having neither wife nor child must designate in writing in such book, in the manner hereinbefore provided, to whom the sum secured shall be paid. In the event of a failure of a member to make such designation such sum shall not be paid.”

In March, 1892, the plaintiff’s son was admitted to Bloomingdale asylum as an insane patient, and from that time until his death in September, 1896, "he was incapacitated from performing any act requiring mental operation. His dues to the order, however, were regularly paid, and at the time of his death the deceased was a member in good standing. . Deceased did not, however, make the designation in the book as provided by the amended by-laws. He died leaving neither wife nor children, but leaving his mother, the plaintiff in the action, who claims to be entitled to receive the fund. It is the well-settled general rule, applicable to these organizations, that the certificate of membership and its conditions, together with the constitution and by-laws of the order, furnish the contract by which the rights of the members to participate in the benefits are to be determined. (Bird v. Mut. Union Assn., 30 App. Div. 346.) Where the constitution makes provision for a change in it and its by-laws by the action of the society, such right to change forms a part of the contract and the members are bound by such changes as are regularly made. The only limitation upon the power seems to be that the by-laws must be reasonable in their terms and operation, and consistent with the provisions of the constitution. (Parish v. N. Y. Produce Ex., 169 N. Y. 34.) So far as the amendments to the by-laws in this case are concerned, they :are undoubtedly reasonable in character, consistent with the provisions of the constitution, and, therefore, such as the organization had the right to make. Fot only must the. change, be reasonable, however, but the operation of the law must also give fair opportunity for a compliance with its provisions. A by-law, however reasonable in form, would necessarily be unreasonable in' its operation, if the members were not given fair opportunity to make compliance with it. The condition always is that the person upon whom the by-law is to operate must be able to and have opportunities for making compliance with its terms, and if by the intervention of the vis majors or other equivalent condition such opportunity is not given, the party will usually be held excused and no forfeiture will be worked. (Wheeler v. Conn. Mut. Life Ins. Co., 82 N. Y. 543.) In this case it was held that insanity did not excuse the payment of premiums upon a policy of life insurance for the reason that such act could be performed by another for the insane person, with the same force and effect as though performed by him, but it also recognizes that if the contract be of such a character that performance can only be made by the person laboring under the disability, then such condition will excuse non-performance, and no forfeiture will be worked thereby. In Cohen v. N. Y. Mut. Life Ins. Co. (50 N. Y. 610) it was said : “There is a manifest distinction between mere impediments and difficulties in the way of the performance of a condition and an impossibility created by law or the act of the government. This is clearly recognized in Wood v. Edwards (19 J. R. 205); People v. Bartlett (3 Hill, 570). An individual by his covenant may undertake, as against his own acts, and the acts of strangers, but not against the acts of God, or his government or of ■ the obligee. * * * In Wolfe v. Howes (20 N. Y. 197) the performance of the undertaking became impossible by the act of God in the death of the party, and performance was held excused upon the ground that the parties must be deemed to have made this an exception by implication.” In the present case the deceased was and had been for a long time prior to the adoption of the amendments to these by-laws utterly incapacitated from performing any intelligent act. It was, therefore, impossible for him to make compliance with the by-law, and such condition was created by the act of God. The act which the deceased was required to perform could not be so performed by any other person. The by-law required that it should be his act in making designation of the person to whom the endowment fund should be paid. True, a designation might be made of some person by another acting for the deceased, but such designation would not be his act nor could it be said that the designation so made would be of the person selected by the deceased had he the mental capacity to make it. It is, therefore, clear that the disability was of such a character as rendered compliance with the amended by-law by the deceased absolutely impossible, and the act required to be performed could not be performed for him by any other person. So far as the payment of premiums is concerned, that was an act which could be and was performed for the deceased by another, and the. defendant had the benefit of all the payments. Under these circumstances, we are of the opinion that the- deceased must- be held to have been exempted from performance, and such exemption is to be implied from the conditions. To hold otherwise would be to say that the organization could make its by-laws operate unreasonably. If death had intervened before opportunity for compliance therewith had been given, clearly no forfeiture could be worked. W e see no difference in principle between an act of God resulting in death, and an act of the same power working a mental death as absolute in bar of performance as though' physical death had supervened. We are of opinion, therefore, that the doctrine of the cases'we have cited is controlling of this question, and that no forfeiture of the rights of the plaintiff was worked by the failure of the deceased to make the designation which the by-law required. Nothing that is contained in Hellenberg v. District No. 1 of 1. O. of B. B. (94 N. Y. 580) conflicts with this view: The insanity in that casé did not supervene until after abundant opportunity had been given to make compliance with the by-law the subject of consideration in that case. Here the disability existed prior to the change, and was continuous during the lifetime of the deceased. Under such circumstances we think that it would be an unreasonable application of this law to hold that its provisions were applicable to the deceased. If these views are sound, it follows that the judgment and order should be affirmed, with costs.

O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting):

I dissent. I do not think that a corporation can make its by-laws operative as to some members and not as to others of the same class. The reasonableness of a by-law is not to be judged by the fact that one member is so situated that he cannot comply with it.

Judgment and order affirmed, with costs.  