
    Per W. Brundin, Appellant, v. The Supreme Council of the Order of Chosen Friends, Respondent.
    
      Benefit insurance — adoption of a by-law declaring members to hold under a new plan of payments and benefits, unless they give notice of their election to continue, under the old plan — knowledge thereof presumed.
    
    By amendments to the by-laws of a fraternal benefit society it was provided that on October 1, 1895, there was to be charged against every member then in good standing, and thereafter against every member to whom a relief fund certificate was issued, such number of assessments as w’ould realize §500 on each $1,000 certificate, and pro rata on a certificate for a greater or less sum. Bach member was to be credited with the amount of all assessments which had been or should be paid by him, until he had paid the amount charged against him. It was also provided that members who had become such prior to October 1, ■ 1895, should have until January 1,1896, to exercise the option given them, upon their complying with certain conditions, of returning to membership under the old plan of the society, and that all members not so electing should continue members under the new plan.
    
      Held, that a member who was such on October 1, 1895, and who had died on November 4, 1895, without having exercised the option given him, must be deemed to be controlled by the new plan, notwithstanding the fact that it was not shown when he received notice of the amendments.
    Appeal by the plaintiff, Per W. Brundin, from a judgment of the Supreme Court, adjudging that the defendant was entitled to a set-off of $833.60 against the face value of the benefit certificate held by the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of November, 1896, upon the decision of the court rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Queens before the court without a jury.
    
      J. Edward Swanstrom, for the appellant.
    
      Howard H. Morse, for the respondent.
   Pee Cueiam :

This action is brought by the plaintiff, as assignee of the wife of one Carl A. Pagerhjelm, who held a benefit certificate of the'defendant, a fraternal benefit society, issued March 6, 1888, for a sum not exceeding $2,000, payable to the widow upon the death of the memher. The case was presented to the Special Term on an agreed statement of facts. ■ By that statement it appears that, under the system of benefits in force prior to the 1st of October, 1895, the plaintiff’s, assignor, on the death of her husband, would have been entitled to-receive the sum of $2,000. On the 14th of September, 1895, the following amendments were made to the by-laws of the defendant::

“Sec. 287A. On the first day of October, A. D. 1895,. there-shall be charged on the relief fund books against every member then in good standing, and thereafter against every member to whom a. relief fund certificate is issued, such number of assessments as will realize the full sum of five hundred dollars on each relief fund certificate for one thousand dollars, and pro rata on a certificate for a greater or less sum; and there shall, at the same timo, he credited every such member the full amount paid on account of each assessment prior to said date; and every member shall thereafter be credited with all assessments paid until such member shall pay the full sum of five hundred dollars on a relief fund certificate for one thousand dollars, and pro rata on a certificate for a greater or less sum.”
“ Sec. 287B. Members admitted prior to October first, A. D. 1895, may, prior to January first, A. D. 1896, exercise the option of returning to membership under the relief fund plan heretofore in force under the printed laws of A. D. 1894. If such member files with the supreme recorder a declaration,'in writing, that he or she elects to return to membership on the relief fund plan in operation prior to the enactment of the foregoing sections 287 and 2S7A, then the supreme recorder shall enter the name of such member in a book to be kept for that purpose, and such member shall pay such assessments each month as may be required to meet his or her pro rata of existing claims, or other claims in such class as they mature, on the basis of sections 287 to 294, inclusive, of the laws of A. D. 1894, the number thereof to be determined by the supreme recorder. All members not so electing shall continue members under the equalization plan, provided that any member exercising, this option shall have the right at any time, upon proper notice, to withdraw and become a member under the equalization plan.”

The insured member, Oarl A. Fagerhjelm, died on the 4th of November, 1895, without exercising the option provided for by section 287B. At the time of his death he had paid to the defendant, on his insurance, $166.40, leaving $833.60 charged against him. The agreed statement asserts “ that the sole question presented to the court, in this case and controversy is, whether, under the by-laws, the defendant has the right to deduct said sum of eight hundred and thirty-three 60-100 dollars from the full sum of two thousand dollars,”

It will be seen that the question, of the validity of these amendments of the by-laws was not before the court below, and is not before us. Such validity must be assumed, as the question to be determined is as to the rights of the parties under the by-laws. We are of opinion that the decision of the Special Term was clearly correct. Six weeks had elapsed between the amendment of the1 by-laws and the death of the insured member. There is nothing to show that the deceased did not receive notice of the amendments, or when notice was given him. Under section 287A, the change in the amount payable on relief fund certificates ivas made to take effect on the first day of October, and it affected all members, except those who took affirmative action, under section 287B, to return to the former system. The time from October first to January first was given as a period during which any member might express his election, but, until election made, all members were under the new system. It is entirely apparent that under the new system the assessments on the death of any member would be lighter than under the old system, because the amount to be paid on. the certificate would be less. During this period of three months, deaths would be' occurring, and members who had not elected to return to the old scheme would be assessed only at the reduced rate. To take advantage of the option granted by the by-laws, it was necessary that the member electing to return to the old system should pay his share of existing or - accruing claims at the old rate. Until Fagerhjelm died we must assume that he paid only the new rate of assessment. There is, therefore, no particular equity that his beneficiary should be paid the old amount of the certificate, and we are not compelled to strain the construction of section 287B to prevent injustice, but may give to it its natural interpretation. So interpreted, it required affirmative action on the part of the member to maintain the old status of his certificate. It was not the operation of the amendments, but the defeat of them, as applied to this party, that depended upon his failure to exercise the option afforded him.

The judgment appealed from should be affirmed, with costs.

All concurred, except Hatch, J., not sitting.

Judgment affirmed, with costs.  