
    Helena Deuble, Respondent, v. The Grand Lodge of the Ancient Order of United Workmen of the State of New York, Appellant.
    
      An amendment tj a by-law—it must be made in accordance with the existing by-law — validity of a condition that a party insured shall not engage in the liquor business.
    
    An amendment to a by-law of a mutual benefit association, specifying the manner in which the by-laws shall be amended, adopted without compliance with the provisions of the by-law sought to be amended, is invalid.
    An amendment to a by-law of a mutual benefit association providing: “Any member of the order who shall, after March 1, 1897, have entered, or who shall hereafter enter, into the business or occupation of selling by retail intoxicating liquors as a beverage, shall stand suspended from any and all rights to participate in the beneficiary fund of the order, and his beneficiary certificate shall become null and void from and after the date of his so engaging in said occupation, and no action of the lodge of which he is a member, or of the grand lodge, or any officer thereof, shall be necessary or a condition precedent to any such suspension. * * * In case any assessment shall be received from a member who has thus engaged in such occupation after March 1st, 1897, the receipt thereof shall not continue the beneficiary certificate of such member in force, nor shall it be a waiver of his so engaging in such occupation,” does not, by its terms, cover the case of a member who was engaged in the business of selling intoxicating liquor at the time he joined the association in 1898, at which time the by-laws contained no restriction as to the sale of intoxicating liquors, and who continued to engage in such business until he died in 1899. Even if the language of the amendment covered the case of such a member, it would be invalid as to him, on the ground that it unjustly deprived him of his rights.
    Appeal by the defendant, The Grand Lodge of the Ancient Order of United Workmen of the State of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 14th day of May, 1901, upon the decision of the court rendered after a trial at the Monroe Trial Term, the jury having been waived by consent.
    
      William, F. Lynn, for the appellant.
    
      George D. Forsyth, for the respondent.
   Williams, J.:

The judgment appealed from should be affirmed, with costs.

The action was brought to recover upon a certificate issued upon the life of one John F. Deuble. The defense was that deceased had ceased to be a member, before his death by reason of being engaged in the sale of intoxicating liquors as a beverage, contrary to a law enacted while he was a member.

The trial court held that the law upon which the defense was based was never legally enacted, and was not binding upon the deceased or his beneficiary.

The certificate was issued January 13, 1893. There was then no restriction against engaging in the sale of liquors, and the deceased was then engaged in that business. He continued to be a member in good standing, certainly until Hay 12, 1899,. and all this time was engaged in the sale of liquors. In 1898 the law upon which the defense is based is claimed to have been enacted. Thereafter, and May 12, 1899, the defendant suspended deceased under the amended law and refused to receive further dues, and assessments from him. He tendered all dues and assessments, however) and continued the business of selling liquors until he died, July 24, 1899. It is not disputed that the laws were a part of the contract of insurance, and that any amendments thereto, made after the certificate was issued, were also binding upon the deceased as a member, unless they improperly .diminished, or entirely cut off, his contract right. The claims are :

First. That the amendment in question was never legally enacted.

Second. That the amendment did not cover the deceased’s case.

Third. That, the amendment, if it covered his case, improperly diminished, or entirely cut off, his contract rights.

First. The claim that the amendment was never legally' enacted appears to be well founded. This question is somewhat complicated by the fact that the provision as to the amendment of laws was itself attempted to be amended during the life of the certificate, and in this attempt-the ¡Provisions as to amendments were not complied with.

When the certificate was issued in 1893, article X of the laws provided in effect that the laws should not be amended unless the proposed amendment should be submitted in writing signed by three .past-master workmen, and passed by a two-thirds vote of that and the succeeding session of the grand lodge. At the annual session of the grand lodge in 1895, an amendment was introduced, but not submitted in writing, signed by three past-master workmen, nor passed by a two-thirds vote. At the annual session in 1896, another amendment of similar import, but in somewhat different' language, was passed by a two-thirds vote, but this was not submitted in writing, signed by three past-master workmen. At the annual session in 1897 the amendment voted upon in 1896 was again passed by a two-thirds vote, but it was not submitted in writing and signed by three past-master workmen. This amendment was declared enacted, and provided, in effect, that all laws enacted by the supreme lodge of general application, and permissible laws of a general nature theretofore asked for by the grand lodge, should become a part of the laws immediately upon promulgation thereof by the grand master workman to the same effect and with the same force as if adopted by the grand lodge ; but the laws should not be otherwise altered or amended unless the proposed amendment should be submitted in writing, signed by three past-master workmen, and passed by a two-thirds vote at a regular session of the grand lodge. The first clause of the amendment seems to be unimportant here. The last clause, however, changes the original article in omitting the requirement that the proposed amendment should be passed by* a two-thirds vote of a succeeding or second grand lodge.

This- change in article X was an important one, affecting the rights of members, and the provisions of the article itself were not complied with in making the amendment. The original article provided that amendments should not be made unless certain specific things were done, and these things were not done in attempting to amend the very article itself. The importance to the deceased of the amendment made is apparent, when we consider that, at the very session of the grand lodge at which the same was made in 1897, the attempt was made under this amended article to make other amendments' which, with one made the following year, 1898, are the basis of the defense in this action.

These amendments were not submitted in writing signed by three past-master workmen, nor were they passed by a two-thirds vote of the succeeding or second grand lodge. Those voted for, and declared adopted in 1897, provided for expelling a member who engaged in the business of selling liquors, but they do not seem to be relied upon here, and very likely were regarded as superseded by the amendment passed and declared adopted in 189.8, which was thereafter printed in the book issued by. the grand lodge as the second clause of section 9 of article IV of the laws, viz.: “Any member of the order who shall, after March 1, 1897, have entered, or who shall hereafter enter, into the business or occupation of selling by retail intoxicating liquors as a beverage, shall stand suspended from any and all rights to participate in the beneficiary fund of the order, and his beneficiary certificate shall become null and void from and after the date of his so engaging in said occupation, and no action of the lodge of- which he is a member or of the grand lodge, or any officer thereof, shall be necessary or a condition precedent to' any such suspension. * * * In case any assessment shall be received from a member who has thus engaged - in such occupation after March 1st, 1897, the receipt thereof shall.not continue the beneficiary certificate of such member in force,-nor shall it be a waiver of his so engaging in such occupation.”

We agree with the trial court that this amendment was never legally enacted, so as to be binding upon the deceased or his beneficiary. The laws which were concededly binding upon the members were also binding upon the order, and they could- only be amended by complying with the provisions of the laws themselves as to the making of such amendments. Article X was, therefore, never properly - amended and as a result article IV was never amended and formed no basis for the defense in this case.

Second. The amendment does not by its terms cover this case-. The deceased did not, after March 1, 1897, or at any time thereafter, enter into the business of selling liquors. He was all the time ungaged in such business, from the time he became a member in 1893 until he died in 1899. This may be regarded as a technical construction of the amendment, but the defense in this case is .not ¡ one to be favorably considered, and we are not inclined to make any liberal construction in favor of the defendant to enable it to defeat the plaintiff’s right of action, especially as the effect of the amendment, if so-liberally construed, would be that.

Third. It would not only diminish, but entirely cut off, the contract rights of the member and his beneficiary.

It does not provide that the‘member shall be suspended unless or until he ceases to engage in the business of-selling liquors, but he shall stand suspended from any and all rights “ to participate in the beneficiary fund of the order, and his beneficiary certificate shall become null and void from and after the date of his so engaging in said occupation.”

The deceased while engaged in this business in 1893 took this certificate. It was perfectly legal then to take it and be and remain in •the business. He continued in the same business and remained a member of the order and paid all dues and assessments on this certificate until the year 1899 when he died. Six years he paid upon a valid certificate, and he had rights under the contract which the defendant could not deprive him. of. In 1898 the defendant assumed to enact this amendment to the laws, which if operative at all as to the deceased and his certificate, cut off entirely all rights under the same. Clearly this could not be done. Authority is hardly needed for this proposition. (Kent v, Quicksilver M. Co., 78 N. Y. 159; Matthews v. A. P. S. N. Y., 136 id. 342; Engelhardt v. Fifth Ward L. Assn., 148 id. 287.)

The court very properly decided that the amendment relating to the selling of liquor was not operative as to the deceased or his beneficiary and constituted no defense to this action. .

The defense as to the mortuary board of claims must fail also, if for no other reason, because the amendment with reference thereto was not legally enacted so as to be binding upon deceased or his beneficiary. ■ There was the same fault in the attempted amendment as there was with reference to the one relating to the selling of liquor.

For the reasons hereinbefore stated the judgment appealed from should be affirmed, with costs.

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

Judgment affirmed, with costs.  