
    REBECCA DEADY v. THE BANK CLERKS’ MUTUAL BENEFIT ASSOCIATION.
    
      Mutual benefit associations— Contracts.
    
    The defendant corporation was a mutual benefit association having for its object provision for the families, etc., of deceased members, out of a fund accumulated for the purpose, the by-laws providing that each member might, by written notice, designate to whom the payment should be made on his decease. Plaintiff’s son, a member, so designated plaintiff, and the board of management of defendant issued to him a certificate agreeing to pay to her said sum on the son’s death. Thereafter, without plaintiff’s knowledge, her son surrendered said certificate to defendant, and received in place of it another certificate designating his wife as the person to whom such payment should be made, and soon after he died.
    
      Meld, that defendant was not bound to pay to plaintiff, the mother, the sum mentioned in the certificate, and that said certificate was not operative as a contract; arid further, that the power to designate was not exhausted by one designation.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    
      Decided June 2, 1883.
    This action was tried- before the court and a jury. The court ordered a verdict for the plaintiff, and then directed that the exceptions be heard in the first instance at the general term.
    The facts of the case are as follows: The defendant was and still is a corporation, duly organized and existing under and by virtue of chapter 319 of the laws of the State of New' York, passed April 13, Í848, and of the several acts amendatory thereof.
    The object or business of said corporation is to relieve the necessities of aged and disabled, and to benefit the families of deceased officers and clerks, connected with the banks and savings’ banks of New York and vicinity, and to ' provide by contribution of its members a fund out of which, there shall be paid to any person or persons previously designated by the deceased member to receive it, the sum of five hundred dollars, and a sum equal to fifty cents for every member of said association at the time of his decease, in addition thereto.
    
      Oh and. previous to October 25, 1875, Richard J. B. - Beady, of the city of New York (who was the son of the plaintiff), was and continued to be down to the time of his -decease, a clerk in the employ of the Merchants’ Exchange National Bank of the City of New York, and on or about said October 25, 1875, the said Richard J. B. Beady was duly admitted and accepted as a member of the said association, and then and there duly paid to said defendant the initiation fee provided by its by-laws, and continued to pay to said association all dues and assessments up to the time -of his death.
    The by-laws of said association provide that any member ¡ may by written notice to the board of management, designate to whom the sum due at the time of his death shall be paid.
    On the day last aforesaid, Richard J. B. Beady, duly’ and in writing, and pursuant to the provisions of the by-laws of said association, designated this plaintiff as the person to whom the sum so due or to grow due, should be paid ;, and thereupon, the said defendant, at the request of said Richard J. B. Beady, issued and delivered a paper writing,; . of which the following is a copy, viz :
    “ No. 1284. Bank Clerks’ Mutual Benefit Association of . the City of New York. New York, October 25, 1875.
    : “ This is to certify that Richard J. B. Beady, having paid the initiation fee as required by the constitution, Is hereby created a member of the Bank Clerks’ Mutual Benefit Association of the City of New York, and the said association hereby agrees to pay to his mother, Rebecca Beady, within thirty days after satisfactory proof of his death, or to himself, if permanently disabled, as many dollars as he may be entitled to under the provisions of the constitution regulating the same, provided he shall be a member in good standing at the time of his death or disability.
    “O. B. Baldwin, President.
    Countersigned [Seal] “ John H. Brennan, Corr. Sect.”
    Thereafter and on the same day, the said Richard J. B. Beady delivered said certificate to this plaintiff; thereafter and on January 26, 1882, the said Richard J. B. Deady died; at the time of his decease he was a member in good standing of said association ; due notice of his said death was given to said-association ; at the time of his said death, there was due from said association the sum of eleven hundred dollars. .
    On January 23, 1882, Richard J. B. Deady surrendered to the defendant the said certificate which had been given to him for safe keeping by the plaintiff and received in the-place of it a certificate in which one Emma L. Deady, was designated as the person to whom the money should be paid. The said certificate was surrendered without the-knowledge or consent of the plaintiff.
    Further facts appear in the opinion.
    
      John Callahan and James Flynn, for plaintiff.
    —By the provisions of its. constitution and by-laws, and by the-act under which it is organized, the defendant had full power and authority to make the contract or agreement set forth in the complaint (Gunlach v. Germania Mec. Asso., 4 Hun, 339). Mr. Deady gave to the plaintiff that contract containing the provision making her the beneficiary; he-could not thereafter surrender, cancel or change its effect without her consent (Lemon v. Phœnix Mutual Life Ins. Co., 38 Conn. 294; Whitehead v. New York Life Ins. Co., 63 How. 394; Bliss on Ins. § 339 [2d ed.]). The case of Durian v. Central Verein (7 Daly, 168), is not adverse to-this view. The question there was as to the effect of a. change made in the constitution of the society. In this-case Mr. Deady, under the express provisions of the constitution and by-laws of the assciation, designated his mother as the beneficiary, and gave to her the contract or agree- ‘ ment making her such, thus placing in her hands and beyond his own control the means of enforcing her claim to-the money.
    
      Carlisle Norwood, Jr., for defendant.
    —The allegation of incorporation establishes that the defendant is not a life-insurance company. The act under which it was founded is entitled “An act for the incorporation of benevolent, charitable, and scientific and missionary societies” (L. 1848, c. 319, 2 R. S. [7th ed.], 1701). A reference to the act (§ 1), will show for what purposes corporations may be formed under it. The character of this corporation, as shown in the complaint, is an association for benevolent purposes. Such a corporation cannot issue a policy of insurance, and its certificate is only a certificate of membership, containing an acknowledgment on the association’s part, that it has received notice of the designation by the member of a person who is to be the recipient of its benevolence on the death of such member (Durian v. The Central Verein, &c., 7 Daly, 169). The further provisions of the act so expressly restrict, corporations formed, that any contract in the nature of a policy of life insurance would be ultra vires. The act provides : “Every corporation formed under this act shall possess the powers and be subject to the provisions and restrictions contained in the 3d title of the 18th chap, of the first part of the R. S.” (2 R. S. [7th ed.] § 9, p. 1703). The provisions and restrictions referred to contain the following: “ § 3. In addition to the powers enumerated in the first section of this title, and to those expressly given in the charter or in the act under which it is or shall be incorporated, no corporation shall possess or exercise any corporate powers, except such as shall be necessary to the exercise of the powers so enumerated and given” (2 R. S. [7th ed.] p. 1531). It was perfectly competent for the defendant and Richard Deady to modify their original agreement and make any agreement satisfactory to both, and within the corporate powers of defendant (Durian v. The Central Verein, &c., 7 Daly, 168, ante).
    
   By the Court.—Sedgwick, Ch. J.

—The complaint set out the by-law under which the certificate in question was made, in the following words : “that any member might by written notice to the board of management designate to whom the sum due at the time of his death shall be paid.” So far as the meaning of these words must be considered in view of the general intent of the statutes, and the peculiarities of the case it was meant for, I am of opinion that the by-law means a designation from time to time, and the power of designation is not exhausted by one designation. To hold that it would, would be contrary to the exigencies of the most of the clerks. Say, for instance, as in this case, a young man becomes a member, shall he wait until he is about to die before he makes the only designation he is entitled to, or is he right in saying,- I may die soon, .and so I name the person that I think the right one now ; but I may marry and have children, and then it will be right to name them.

To me it is manifest that the certificate in question is not legally operative as a contract between the plaintiff and defendant. It has as one of its terms, implied if not expressed, the by-law that has been referred to. "The defendant had no power to make any other contract than such as would be justified by the charter and by-laws. Such a contract would express the obligation of the defendant to the member to pay to the appointee as appointee. The present certificate is no further valid, than it. embodies evidence that the plaintiff was the appointee. The rights of the plaintiff are not greater than they would be if she never had had the certificate, but depended solely upon the fact that she had been designated to the bond. It is not a negotiable instrument, or mercantile obligation. No consideration is implied. There is no estoppel. The plaintiff did not pay value for it. Granting that the member has the power to make an appointment that shall be irrevocable between him and the appointee, e. g., because of some consideration paid, there is no presumption that such an arrangement was made in this case. As against a subsequent appointee, the burden of proof would be on a prior appointee.

For these reasons, I am of opinion that on the case as made, the defendants were not bound to pay the amount of the certificate to the plaintiff, and that defendants’ exception should be sustained, the verdict set aside and a new trial ordered.

Truax, J., concurred.  