
    Mary Sands, Respondent, v. Pennsylvania Railroad Company, Appellant.
    (Supreme Court, Appellate Term, Second Department,
    December, 1915.)
    Associations — benefits and who entitled—evidence.
    Where the laws of a benefit association do not limit a member’s right to name the beneficiaries of his death benefit, the one he designates as beneficiary, though not a member of his family or dependent upon him, is entitled to such benefit if at the time of . his death the member was in good standing with the association and all the requirements as to proof of death had been complied with.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn. The facts appear in the opinion.
    Ray Rood Allen, for appellant.
    Samuel Francis Edmead, for respondent.
   Maddox, J.

William. A. Sands, an employee of the defendant, on September 16,1910, became a member of the “ relief fund of that company ” and entitled to benefits provided by the regulations of its relief department for a member of the first class, with no additional death benefit of the first class. He so continued a member until his death on April 18, 1912, and it is conceded, that all dues were paid up to his death. His application for membership is dated September 16, 1910, and therein, •in writing, he designates, with the approval of the superintendent of said relief department, “My wife — Josephine C.,” as the person to whom death benefit shall be payable. The book of regulations of said relief department is in evidence, and by subdivision 1 of paragraph 29 (page 27) it is provided that payment of death benefits of a member shall be made to the beneficiary or beneficiaries designated in the member’s principal application, or subsequently in the prescribed form, whose designation shall have been approved by the superintendent of the relief department, and, where there are more than one such beneficiary, in equal shares, unless otherwise specifically provided.

There is no provision in the regulation .limiting the right of the member to name any person he might see fit as beneficiary or beneficiaries. His application for membership, which included his designation as beneficiary, appears on the face thereof to be approved by the assistant superintendent of such relief department.

The deceased on June 13,1891, was married to Mary Nancy Juvrey, the plaintiff; they lived together until 1893, when he deserted her and their two children, and since failed to provide for her. On December 28,1896, he married one Jennie Mayo, living with her about eleven years, until her death in 1907. She left one child, Edith. In 1909 or 1910 Sands went to live with Josephine C. Miner and her husband, where he continued until his death.

Demand' was made. by plaintiff for the benefit alleged to be due, which was not paid. The amount of the benefit was $250, of which defendant deducted under the regulations governing the benefit depart.ment $100.93 for burial expenses, leaving a balance of $149.07, upon which, at time of .trial, $27.46 interest was due.

Upon the case presented plaintiff cannot in any event recover. The deceased as member of defendant relief department was within his rights when he designated as his beneficiary My wife — Josephine C.,” though the person referred to was not his wife and notwithstanding that both were then incapable of entering into a marriage relation, since each had a spouse living. The regulations of defendant’s relief department do not restrict the designation of beneficiaries to relatives- or dependents only of deceased members. It is a question of identity. Whom did he intend? Clearly not Mary Nancy Sands, the plaintiff, nor Jennie Mayo, the dead woman. He at that time was living with a woman whose name was Josephine C. Miner, and from the evidence adduced the only person who might answer the name Josephine C. is the woman with whom he was living at the time of his application for membership in the defendant’s relief department. Durian v. Central Verein, 7 Daly, 168; Coulson v. Flynn, 181 N. Y. 62; Richards v. King, 57 Misc. Rep. 177; Story v. Williamsburgh M. M. B. A., 95 N. Y. 474.

In the absence of some provision in the laws of the. benefit association limiting the member’s right to name the beneficiary of the death benefit, the person so designated by him, though not a member of his family or dependent upon him, is entitled to such benefit if at the time of his death the member is in good standing in the association, and all the requirements as to proof of death have been complied with.

Mendelson v. Gausman, 78 Misc. Rep. 458; affd., 157 App. Div. 370, is not, in my opinion, controlling here, since in that case the by-laws of the benefit association expressly provided for the situation there presented, namely, that such by-laws limited designations of beneficiaries to specific persons, and it was there held that such by-laws met that situation.

Kapper and Kelby, JJ., concur.

Judgment reversed, without costs, and judgment absolute directed for defendant dismissing the complaint upon the merits, with costs.  