
    Ella A. Sabin, App’lt, v. Andrew S. Phinney, Impl’d, Resp’t.
    
      (Court of Appeals, Second Division,
    
    
      Filed October 1, 1892.)
    
    1. Benefit societies—Ancient Order United Workmen—Policy made: PAYABLE TO ONE RAVINS NO INSURABLE INTEREST.
    Under the statute and by-laws of the A. O. U. W., a member of that corporation can legally direct the sum to become due at his death to be paid to a stranger having no insurable interest in his life.
    2. Same.
    The relation between the A. O. U. W. and a member gives the latter the' right of change of beneficiary with or without reason, with the absolute-right of the member to substitute a new one at any moment.
    3. Same.
    Where the wife never paid any part of the expenses incident to the membership of her husband in the A. O. U. W., nor of her membership in another society, and no pecuniary consideration can be raised in her favor, she does not by the certificate in which she is named as beneficiary, and its delivery to her, acquire a vested interest in the sum payable thereunder, of which she could not be deprived without her consent.
    Appeal from a judgment of the general term of the supreme' court of the fifth department, which affirmed, without costs, a judgment dismissing the complaint on the merits, with costs, entered on the report of a referee.
    March 20, 1877, the Grand Lodge of the Ancient Order of United Workmen of the State of Mew York was incorporated by chapter 74 of the laws of that year. This statute authorized the corporation to create subordinate lodges and accumulate funds for the benefit of members. The fourth section of the act provides r.
    
      “ See. 4.. Such beneficiary fund as may be ordained suitable by said corporation may be set apart and provided to be paid over to the families, heirs or representatives of deceased or disabled members, or to such person or persons as such deceased member may, while living, have directed; and the collecting, management and disbursement of the same, as well as the person or persons to whom, and the manner and time in which the same shall be paid, on the death of a member, shall be regulated and controlled by the rules and by-laws of the corporation. * *
    Among the by-laws of the corporation was the following :
    “ Sec. 17. Any member holding a beneficiary certificate desiring at any time to make a new direction as to its payment, may< do so by authorizing such change in writing on the back of his ■certificate in the form prescribed, attested by the recorder with the seal of the lodge attached, and by the payment to the Grand Lodge of the sum of fifty cents; but no change or direction shall be valid or have any binding force or effect until it shall have been reported to the grand recorder, the old certificate, if practicable, filed with him- and a new beneficiary certificate issued thereon, and said new beneficiary certificate shall be numbered the same as the old ■certificate.”
    Prior to March 22, 1879, a subordinate lodge was organized at Hornellsville, N. Y, and designated as George Washington Lodge N o. 132, of which John C. Sabin became a member, and on the 24th of March, 1879, received a certificate, of which the following is a copy:
    41 No. 9513. $2,000
    “ The Grand Lodge of the Ancient Order of United Workmen of the State of New York :
    “ This certificate, issued by the authority of the Grand Lodge of the Ancient Order of United Workmen of the State of New York, witnesseth: That John G. Sabin, a master workman degree member of George Washington Lodge No. 132, of said order, located at Hornellsville, in thg state of New York, is entitled to all the rights and privileges of membership in the Ancient Order of United Workmen, and to participate in the beneficiary fund of the order to the amount of $2,000.00, which sum shall, at his death, be paid to Ella A. Sabin.
    “ This certificate is issued upon the express condition that said John C. Sabin shall, in every particular, while a member of said order, comply with all the laws and rules and requirements thereof.
    “ In witness whereof, the Grand Lodge of the Ancient Order of United Workmen of the State of New York, has caused this to be signed by its grand master workman and grand recorder, and the seal thereof to be attached this 22d day of March, one thousand eight hundred and seventy-nine.
    (Seal of Grand Lodge.)
    “ Attest. J. C. Armstrong, Grand Eecorder.
    
    “ E. M. Clark, Grand Master Workman.
    
    
      “ We, the undersigned master workman and recorder of George Washington Lodge Xo. 132, do hereby countersign this certificate and attach the seal of this lodge hereto,' rendering the same valid and in full force, this 24th day of March, 1879.
    (Seal of George Washington Lodge.)
    “Attest. O. D. Crandall, Recorder.
    
    “D. F. Cridler, Master Workman.''
    
    Ella A. Sabin, mentioned in the certificate, was the wife of John C. Sabin. August 8, 1882, Ella A. Sabin became a member of the Bath Mutual Endowment Co., and procured a certificate therefrom, payable to John C. Sabin in case of her death. The first mentioned certificate was delivered by the husband to the wife, and the second certificate by the wife to the husband, each intending by the certificates so issued and delivered to provide for the survivor.
    In May, 1883, the husband and wife separated by mutual consent and thereafter nevfer lived together. The husband paid the dues on both memberships or certificates until he and his wife separated. About the time of their separation the wife took possession of the certificate upon her life, and the husband of the certificate upon his life. The husband took the certificate issued upon his life without the consent of the wife, and she the certificate issued on her life without his consent. Afterwards John C. Sabin resolved not to keep said certificate in force for the benefit of his wife, and so informed the respondent, but at the same time, expressed the desire to remain a member of the lodge. It was' then agreed between Sabin and Phinney, who were in no wise related, that Phinney should pay all subsequent dues, and that a new certificate sliould be issued payable to him on the death of Sabin. To accomplish this Sabin executed the following endorsement upon the certificate, and delivered it to Phinney:
    “ I, John 0. Sabin, to whom the within certificate was issued, do hereby revoke my former direction as to the payment of the beneficiary fund due at my death, and now authorize and direct said payment to be made to A. S. Phinney, or his heirs, bearing relationship to myself of "x" * * .
    “ Witness my hand and seal this 10th day of July, 1883.
    [seal.] • “John 0. Sabin.”
    And the same was attested as follows:
    “Attest: George C. Platt, Recorder.
    
    (“Seal George Washington Lodge.”)
    The original certificate, with the aforesaid endorsement, was by Phinney delivered to the officers of the grand lodge, who can-celled it, and July 20, 1883, issued a new one precisely like the one set forth, except it was payable to Andrew S. Phinney instead of Ella A. Sabin. After receiving this certificate Phinney paid all dues on it. At some time in 1883, Ella A. Sabin surrendered the certificate which was issued upon her life payable to her husband, and received a new one payable to her legal representatives. John C. Sabin was employed on a railroad train, and in September, 1883, he was injured by an accident, and on the 13th of October following he died intestate. The appellant and respondent each claims to be entitled to the fund payable by the terms of the certificate.
    The grand lodge does not contest its liability and has paid the amount into court.
    
      D. M. Page, for app’lt; G. N. Orcutt, for resp’t.
    
      
       Affirming 28 St. Rep., 45.
    
   Follett, Ch. J.

—The appellant insists that the cancellation of the first certificate which was payable to her, and the substitution of the second which was payable to the respondent, was void for two reasons.

1. That the respondent had no insurable interest in the life of John 0. Sabin.

2. That she, the wife, acquired by virtue of the first certificate and its delivery to her a vested right to the sum payable on her husband’s death of which she could not be deprived without her consent.

The statute under which the corporation was organized expressly provides that the funds “may beset apart and provided to be paid over to the families, heirs or representatives of deceased or disabled members, or to such person or persons as such deceased member may, while living, have directed." The by-laws of the corporation impose no limitation on the persons to whom certificates should be payable. It was held in Massey v. Mutual Relief Society of Rochester, 102 N. Y., 523; 2 St. Rep., 487, that there being no restriction in the act under which the society was incorporated against making a certificate payable to a person in no wise related to the member, that a certificate issued to a stranger was not void as a wager policy. In that case the certificate was issued in favor of a person not related to the member, and who was nota member of the society, but in the case at bar the certificate was issued in favor of a member of the order. Under the statute and by-laws a member of this corporation can legally direct the sum to become due at his death to be paid to a stranger having no insurable interest in his life. Niblack on M. B. Societies, § 178.

Did the plaintiff by the certificate and its delivery to her acquire a vested interest in the sum payable thereunder, of which she could not be deprived without her consent ? It is to be observed that the wife never paid any part of the expenses incident to the membership of her husband in this society, nor of her membership in the society to which she belonged, and no pecuniary consideration can be raised in her favor. The statute under which the corporation was organized, its by-laws, together with the application for, and the certificate of membership constituted the contract which existed between the member and the society, which instruments construed together measure the rights of these litigants. Hellenberg v. Dist. No. 1, 94 N. Y., 580; Sanger v. Rothschild, 123 id., 577; 34 St. Rep., 258; Niblack on M. B. Societies, § 166.

The relation which existed between Sabin and the society subjected him to certain burdens and entitled him to certain benefits during the continuance of his membership, and if he died while in good standing in the order his appointee became entitled to a certain sum. This relation could be terminated at any time, at the will of the member and the appointee was changeable from time to time as he might elect. If we choose to term this relation a contract and it was established by agreement, the contract gave the right of change of the beneficiary with or without reason. Any person who became an appointee in such a certificate took the position subject to the absolute right of the member to substitute a new one at any moment. The rights acquired by the member, by virtue of this relation, did not amount to a chose in action. He had no interest in the society that was assignable or transferable until some right of action had accrued _ The appointee had no vested interest in the sum which might in a contingency become payable on death of the member. Hellenberg v. Dist. No. 1, supra; Sanger v. Rothschild, supra; Bown v. Catholic Mutual Benefit Assn., 33 Hun, 263; Boasberg v. Cronan, 30 St. Rep., 483.

It being settled that an appointee under such a contract has no vested interest in the sum, the position taken by the plaintiff in this case becomes utterly untenable.

The judgment should be affirmed, with costs.

All concur, except Bradley, J., not sitting, and Haight, J., not voting.  