
    Katherine Dielmann, an Infant, Etc., Respondent, v. Charles Berka, as Treasurer, Etc., Appellant.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Fraternal and mutual associations — Eight to benefits — Wife of member — Funeral expenses.
    Where the by-laws of a mutual benefit association provide upon the death of a member for the payment to the survivors of $100; that death benefits shall not be paid before the proper heirs have been ascertained and that, where members have no specific heirs and have made no other disposition, the society assumes the burial expenses not exceeding $100; in an action by the widow of the deceased member to recover the amount of the benefit it is not a defense to the society to show that the money has been paid to the father of the deceased who bore the funeral expenses.
    Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of Yew York, eighth district, borough of Manhattan.
    
      Hillquit & Hillquit, for appellant.
    M. Strassman, for respondent.
   Scott, J.

The defendant is treasurer of a voluntary association known as Bricklayers Union, Ho. 11, of which plaintiff’s deceased husband was a member at the time of his death. The only article of the union’s constitution or by-laws read in evidence was article X, reading as follows: “Upon the decease of a member in good standing, the Society through its Treasurer, pays to the survivors upon the production of a certificate of death the sum of $100 which is to be raised by a uniform assessment upon the members. The Treasurer shall not pay death benefits before the proper heirs have been ascertained, but every member .has the duty in his lifetime to inform, the Society about his heirs. For this purpose the Society keeps a separate book. In case of members who have no specific heirs, and have made no other disposition, the Society assumes the burial expenses, but in such case the expense must not exceed the sum of $100. Claims to death benefits must be presented to the Union within four weeks from the death of the member. After the expiration of such time no more claims will be considered. Ho assistance in case of sickness shall be allowed from the treasury of the Society”. The appellant insists that the object of this by-law was to provide for the expense of the funeral of a deceased member and, hence, that payment to any relative who had paid the funeral expenses should be taken to be a "compliance with the by-laws. This may have been the purpose of the society but, if so, they failed to so express it. Throughout, the sum to be paid is spoken of as a death benefit, never as a funeral benefit, and in this regard the case differs essentially from those relied upon by the appellant. Fanton v. Coachmen’s Ben. Union, 13 Misc. Rep. 245; Hughes v. Journeymen Horseshoers Union, 29 id. 327. The circumstance that the father paid the funeral expenses is not, therefore, controlling as to his right to receive the death benefit. It appears that the deceased had been married to plaintiff only a very short time before his death, and that neither the father nor the union knew of his marriage. Soon after the death and well within the time fixed by the by-laws for the presentation of claims, the father claimed and was paid the $100. Shortly afterward and, likewise, within the time fixed for presenting claims, the plaintiff claimed the benefit. Although the union had no knowledge or reason to know that the deceased was married, still, it is undeniable that it assumed some risk in paying any one before the full time for the presentation of claims had expired; and, if it has to pay the money or some part of it over again, it will be because it took that risk. The by-law is not technical in its description of the persons to whom this death benefit shall be paid. In one place it speaks of “ survivors ” and, later on, describes them as “ heirs ”. It is manifest that the word “heirs” is not used in its strict legal sense which would be quite inappropriate as descriptive of the persons to receive such a benefit. In a similar case, in the Fourth Department, it was held that a like designation should be held to indicate those persons to whom personal property of the deceased would go in case of intestacy, and that, as among them/ the fund should be distributed in accordance with the statute regulating the distribution of the personal estate of an intestate; and substantially the same rule has been applied by the Court of Appeals. Walsh v. Walsh, 20 N. Y. Supp. 933; Griswold v. Sawyer, 125 N. Y. 411. In cur opinion, that rule should be applied in the present case. So far as appears, the deceased left a widow, and a father. It is not suggested that he left any children.. The most, therefore, that the plaintiff was entitled to collect from the union was one-half of the benefit. Code Civ. Pro. § 2732.

The judgment must, therefore, be reduced by fifty dollars, which the father was entitled to in any event, and, as so modified, will be affirmed, without costs to either party.

Giegbbich and Greeitbatjm, JJ., concur.

Judgment reduced by fifty dollars and, as so modified, affirmed, without costs to either party.  