
    The People ex rel. Emmet Meyers, Resp’t, v. The Masonic Guild & Mutual Benefit Association, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Benefit societies—Mandamus.
    Where a judgment is obtained against a mutual benefit society and an execution thereon returned unsatisfied, a mandamus to compel the society to make an assesssment to satisfy it is proper.
    Appeal from order directing a peremptory mandamus to issue against appellant, directing it to make and call and continue making and calling an assessment upon its members to pay a judgment recovered by respondent against it. Appellant is a mutual benefit society, and issued its certificate of membership to Isaac Meyers, wherein the relator Emmet Meyers was named as beneficiary.
    It was provided in said certificate to pay to said relator the sum of $3,000, or such proportion1 thereof as is provided for in the bylaws.
    Article 6 of the by-laws provided “ that whenever the membership of the association shall be sufficiently large, so that the assessment shall amount to the payment of a $5,000 certificate, the certificate of .each member shall be paid in full * * * but until the death assessment shall amount to such sum the payment of a certificate shall be pro rata, based upon the death of a member holding a $5,000 certificate.”
    Upon the death of Isaac Meyers, an assessment was duly levied on the persons who were members of the association at that time, and there was collected the sum of $2,439.40, the next to the largest assessment ever collected. The relator holding a $3,000 certificate, received his proportionate part of the assessment, which was $1,388.94, and gave a receipt in full.
    About five years after Meyers received this amount he brought an action on his certificate, claiming that he was entitled to be paid in full, and recovered judgment for $2,247.40. Upon the return of an execution unsatisfied, he moved for and obtained a,n order, “that a peremptory writ of mandamus issue forthwith directed to the appellant to make and call an assessment upon all the members of the association "x" * * and to continue calling or making such calls or assessments to an amount equal to the relator’s judgment, and pay the amount so realized to the relator or his attorney until said judgment is satisfied.”
    
      Adolphus 1). Pape, for app’lt; John W. Lyon, for resp’t.
   Barnard, P. J.

The defendant issued to Isaac Meyers a certificate entitling the plaintiff to $3,000 on the death of Isaac Meyers.

Isaac Meyers died and the plaintiff brought this action to recover the amount. By the judgment of this court the plaintiff recovered a judgment for the sum of $1,600, with interest from the 10th of August, 1884, that being the amount unpaid on the certificate.

By the agreement between Isaac Meyers and the company defendant, an assessment was to be made on all the members so as to pay the full sum of $3,000 within thirty days after notice of death. This has not been done. An execution fails to obtain property to satisfy the judgment. The case is one without remedy if the company cannot be compelled by mandamus to perform an act which by the contract was to produce the fund. The duty is clear. It is the contract.

The society is a mutual one, and an assessment is the method by which the benefits of the association are attainable. There is no remedy by action ; that has been tried, and except so far as it overruled the question now waged as a defense, was fruitless. It is not collecting a debt by mandamus.

The effect of the writ is only to make a board of paymasters do a certain duty which they owe to the plaintiff. The plaintiff has a clear legal right and no other remedy. Mandamus is not the proper remedy until after judgment. Doty v. State Mutual Benefit Association, 29 N. Y. State Rep., 898.

The judgment should, therefore, be affirmed, with fifty dollars costs.

Dykman, J., concurs.  