
    Patrick Davin, Plaintiff, v. Catherine Davin, Defendant.
    
      Submission of the question, which of two claimants is entitled to the amount payable under a certificate of a fraternal benefit society — the society is a necessary party.
    
    Where two parties, each claiming to be entitled to the proceeds of a benefit certificate issued by a fraternal benefit society, submit the controversy to the court upon an agreed statement of facts, pursuant to section 1379 of the Code of Civil Procedure, and each demands judgment that the amount of the benefit certificate be paid to him, the court will dismiss the submission where it appears that the right of either party to the amount of the benefit certificate depends upon the construction to be given to important provisions of the charter of the fraternal benefit society, that the society is not a party to the submission, and that the fund is not in court.
    On the submission of a controversy, the court cannot direct a judgment against an undisclosed defendant nor can it award any different relief from that asked for in the submission. (Per Patterson and Hatch, JJ.)
    Ingraham and McLaughlin, JJ., concurred in result.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      John J. O'Neill, for the plaintiff.
    
      W. Benton Crisp, for the defendant.
   Patterson, J.:

Both parties to this submission claim to be entitled to the proceeds of a benefit certificate issued by the “ Knights of Columbus,” a fraternal benefit society, organized under the laws of the State of Connecticut, to one James J. Bavin, now deceased, and each demands judgment that the amount of the certificate be paid to him or her. The determination of the right of either party to the amount of the certificate depends upon the construction to be given to important provisions of the charter of the “Knights of Columbus.” That society is not a party to the submission or in any way before the court. We are of opinion that we should not give judicial construction to those provisions without the presence of that society. Certainly we cannot now award judgment that the amount of the certificate be paid by the society to either party. A judgment against an undisclosed defendant on a submission under section 1279 of the Code of Civil Procedure cannot be directed (Dickinson v. Dickey, 76 N. Y. 602) and we cannot award any different relief than that asked for, which by each party is that he or she is entitled to the proceeds of the certificate and that the same shall be paid to him or her. (Union National Bank v. Kupper, 63 N. Y. 617.) In Kennedy v. Mayor (79 N. Y. 361) and Hobart College v. Fitzhugh (27 id. 130) it was held that the plaintiff cannot have judgment upon the submission of a controversy where a third party who is interested in the result has not been made a party. There is not a fund in court, nor anything upon which the court can act, so that the rights of all parties may be finally adjudicated and enforced. The rule applicable to actions should control here. It was held in Steinbach v. Prudential Ins. Co. (172 N. Y. 471), which was an action to reform a policy, that the court ought to have brought in the personal representatives of the insured. It had been decided by this court in that case that the action could proceed against the insurance company without the presence of the administrator of the insured and that the company had waived the deféct of parties by reason of not having set up the defect in the answer or having demurred. (62 App. Biv. 133.) The Court" of Appeals said, “ While the statute does not in terms prohibit the court from determining the controversy, unless all the necessary parties are brought in, that is impliedly commanded, and is the established practice in all equitable actions ’ ” (citing Mahr v. Norwich Union F. Ins. Society, 127 N. Y. 452 ; Peyser v. Wendt, 87 id. 323; Sherman v. Parish, 53 id. 483; Van Epps v. Van Deusen, 4 Paige, 64), and continued as follows: “ A court of equity always seeks to do complete justice and to make its judgments so full and comprehensive as to quiet the controversy in all its aspects and as to all persons. Thus every one who is compelled to obey its decrees is protected, further litigation is prevented, and the unseemly spectacle of inconsistent judgments rendered by the same court is avoided. The / plaintiff insists that the rights of the personal representatives * "* * are not prejudiced by the judgment appealed from, because they are not bound by it and can still recover upon the policy, notwithstanding the judgment of reformation rendered in this action. This might lead to inconsistent judgments and a double recovery.” The submission should be dismissed, without costs.

Hatch, J., concurred; Ingraham and McLaughlin, JJ., concurred in result.

Submission dismissed, without costs.  