
    Annie Murphy, Respondent, v. The Metropolitan Street Railway Association, Appellant.
    (Supreme Court, Appellate Term,
    January, 1899.)
    Benefit societies — Consent to a change in the beneficiary — Failure to perform conditions precedent.
    Where the constitution of a benefit association provides that a member may designate, as beneficiary, one not a relative upon giving good and sufficient reasons for such designation and also upon the consent of the association, the latter condition is a proper requirement.
    Where the member upon the death of his wife, the original beneficiary, applies for a change of designation without giving any reasons therefor, and the application is not acted upon by the association before his death, the association cannot be said to have prevented performance nor to have arbitrarily denied the member’s rights.
    Where the member dies without having made a valid designation, the provisions of the constitution of the association, that the death benefit shall pass to his personal representatives, control and exclude the person ineffectually attempted to be designated as beneficiary by the member.
    Appeal by the defendant from a judgment of the Municipal Court of the - city of New York, borough of Manhattan, second district, in favor of the plaintiff upon an agreed state of facts.
    Action to recover certain death and sick benefits, respectively. The pleadings were oral, and the answer a general denial. The material facts are stated in the opinion.
    Henry A. Robinson, for appellant.
    Samuel I. Ferguson, for respondent.
   Giegerich, J.

The plaintiff’s claim against the defendant is based upon a paper writing, executed by one Barry, a member in good standing, whereby his intention that she should receive the death benefit conferred by his membership was, perhaps, sufficiently expressed, but clearly her case was not such as to support a recovery.

Barry had designated his wife as his beneficiary in his original application, but she predeceased him, and for the failure of a further designation, and acceptance by the association, the death benefit was payable to the member’s personal representatives, this being the provision of the contract as represented by the association’s constitution. Art. IV, § 3.

The attempted substitution of the plaintiff, as beneficiary, by the paper afterwards subscribed by Barry, was never ratified by the defendant, nor embodied in any certificate authorizing the .change, and yet the constitution (art. X) provided: “An applicant may, in his application or subsequently thereto,. designate in writing a beneficiary to receive his death benefit other than relatives entitled to receive the amounts payable in the event of, the death of the applicant, in the application, on giving good and sufficient reasons for such designation; provided, however, that any change shall be invalid and inoperative until the board of trustees consents thereto.”

There is no ambiguity in this provision, and the condition for the consent of the association is not unreasonable, since there is propriety in this method of regulating the relations of the association to the member and to the beneficiary, for the orderly conduct of their affairs and for the protection of the member’s interests against spurious or unconscionable claims.

There is nothing in this record to show, or to lead to an inference, that the defendant’s officers unreasonably refused to accept the plaintiff as Barry’s beneficiary, for the proof is merely that she presented the paper in question to an officer of the defendant before Barry’s death, and the defendant’s failure to take action upon it, where the proposed designation was accompanied by no statement of reasons whatever, by the member, as in compliance with the provision quoted, cannot be viewed, without more, as a prevention of performance or as an arbitrary denial by the association of the members’ rights.

The rule of law which calls for a liberal construction of a benevolent society’s contract with the member, in favor of the latter, operates only where there is a possible ambiguity in the words employed; or where some unreasonable condition to the enjoyment of the benefits is annexed (NTblack on Mut. Ben. Soc., § 15), but here there was no ambiguity, and the particular provision which affects the plaintiff’s cause of action was but0 a reasonable regulation governing a change of beneficiaries, compliance with which could not be dispensed with. Id., § 226.

It results that upon the death of Barry, the sum in suit became payable to his personal representatives, and that, under the state of facts disclosed, the defendant would not be protected as against such parties as might be entitled to a distributive share of his estate, or as against his creditors, by making payment to the plaintiff. ¡

The unpaid sick benefits were not the subject of assignment,, but followed the death benefit, for the contract so provided (Const., art. XI, § 5), and, therefore, no item of the recovery may be-supported. While, upon the facts submitted, the complaint should perhaps be dismissed, it may be that the plaintiff might support her case by further proof, and, therefore, a new trial will be ordered.

It follows from these views, that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Gildersleeve, J., concur.

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