
    Mary M. Neal, Respondent, v. The New York City Police Endowment Fund, Appellant.
    (Supreme Court, Appellate Term, First Department,
    October, 1913.)
    Appeal — reversal of judgment in plaintiff's favor — no evidence taken on trial.
    Associations — police department of city of New York — membership corporations — amendment of by-laws.
    Where the pleadings put in issue the facts upon which plaintiff predicates her claim for judgment, and no evidence is taken upon the trial, a judgment in plaintiff’s favor must be reversed.
    
      Where the complaint alleged that under the by-laws of defendant, a membership corporation composed of the members of the police department of the city of New York, at the time plaintiff, a matron in said department, became a member of said corporation, she was entitled in ease of death, dismissal or retirement to $200 provided she was in good standing for over eighteen months and less than three years; that subsequently the by-laws were amended so as to provide for the payment of said sum upon the resignation of a member; that she resigned as matron within three years of joining said corporation, and the answer alleged that after plaintiff had joined defendant its by-laws were amended so as to provide that “ any member in good standing five consecutive years who may resign from the police department of the city of New York shall receive a sum not less than $500,” and the answer further alleged that said amendment was adopted in lieu of the provision upon which plaintiff’s claim was based, she was not entitled to judgment unless she proved the controverted allegations.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, rendered in favor of the plaintiff.
    Grant & Rouss (Jacob Rouss, of counsel), for appellant.
    William E. Murphy, for respondent.
   Seabuby, J.

The defendant is a membership corporation composed of members of the police department of the city of New York. The plaintiff was a matron in the police department, and became a member of the defendant organization on October 1, 1909. This action is brought to recover $200 alleged by the plaintiff to be due her from the defendant under her certificate of membership in the defendant organization. The complaint alleged that, under the by-laws existing at the time the plaintiff became a member, she was entitled in case of death, dismissal or retirement to $200 provided she was a member in good standing for over eighteen months and less than three years; and that, subsequently, the by-laws were so amended as to provide for the payment of this sum upon the ‘ ‘ resignation ” of a member. It is further alleged that on February 26, 1912, the plaintiff resigned her position as matron in the police department. The answer by the defendant alleges that the by-laws were, subsequently to plaintiff’s original membership, amended so as to provide that any member in good standing •five consecutive years who may resign from the police department of the city of New York shall receive a sum of not less than $500.” The answer further alleged that this amendment was adopted in lieu of the provision which provided for the payment of $200 upon ■which the plaintiff bases her claim. The defendant contended that, because the plaintiff had not been a member of the defendant organization for five years, she was not entitled to recover. No evidence was introduced upon the trial. Both sides moved for judgment on the pleadings. This motion was originally denied by the court, and then both sides announced that they “ rested on the pleadings.” The court reserved decision, and subsequently granted judgment in favor of the plaintiff. From that judgment the defendant appeals to this court. The pleadings put in issue the facts upon which the plaintiff predicated her claim for judgment. Under these circumstances the pleadings were not in such a condition that the court could render judgment upon them. No determination of the rights of the parties could be had upon the conflicting contentions presented by the pleadings. The rights of the parties could only be determined upon the presentation of proof, unless the parties admitted the facts. The controverted allegations of the complaint afford no basis for the award of judgment for the plaintiff. The allegations of the complaint being put in issue by the answer, the plaintiff was not entitled to judgment unless she proved the controverted allegations.

It follows that the judgment should he reversed and a new trial ordered, with costs to appellant to abide the event.

Page and Bijur, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  