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Wiedynska v. Pulaski Polish Benevolent Society

110 A.D. 732 Court Second Department, Decision date 1906-01-26 English

Delivered by Jenks, J.:

Contents

Majority

p. 732
Magdalena Wiedynska, as Executrix, etc., of Frank Bosikowski, Respondent, A . Pulaski Polish Benevolent Society, Appellant.
Second Department,
January 26, 1906.

Headnote

Benevolent insurance society —‘ vested right of members cannot be cut off by amendments to its constitution.
A benevolent insurance society cannot, by an amendment to its constitution and by-laws, cut off the rights of beneficiaries when- the same are vested.
Hence, the representatives of a member entitled to.a sum wfeekly during illness can recover the insurance to the time of the death of the member, although • during ,such illness, tip constitution and 'by-laws have been amended so as to limit the amount payable to members.
Appeal by the defendant, the Pulaski Polish Benevolent Society,' from a judgment of the Municipal Court of the city of Eew York, borough of Brooklyn, in' favor of the plaintiff, entered in the office of the clerk of said court on the 17th day of December, 1904.
p. 733
Thomas Kelly, for the appellant.
Henry J. Davenport, for the respondent.

Plaintiffs intestate was a member of a benevolent society. The constitution and by-láws are in the Polish language. No translation thereof is in the record, but parts thereof were interpreted and read in evidence. It seems that the object of the society is “to pay sick and 'death benefits.” When the intestate fell ill he was entitled under the constitution and the by-laws to receive during his illness certain weekly sums graded for six months, three months, and then $2 weekly during the period of illness. He fell ill on May 3, 1898, and received sick benefits until March 10,1902, but thereafter nothing. ' This action is to recover the sum of the two-dollar weekly payments for the period intervening March 10, 1902, and his death. The defendant showed that on March 10,1902, the constitution (?) and the by-laws were amended so as to prohibit the payment of more than $300 to any member for sick benefits, and proved that the sum theretofore paid to the intestate exceeded that amount.

It is not asserted that the intestate ever assented to this change or that he ever had notice thereof. The-appellant contends that such change was within the powers of the association, and cites two authorities, with stress upon Poultney v. Bachman ( 31 Hun, 49 ). His contention is also sustained by the judgment in Pain v. Société St. Jean Baptiste ( 172 Mass. 319 ), wherein Poultney’s Case (supra) is cited. But in Parish v. New York Produce Exchange ( 169 N. Y. 34 , 36) the court, after mention of the holding in Pain’s Case (supra) on the precise point now up, says that “ the trend of authority in this State is, however, in the other direction.” That is, that.such an-association cannot under power of amendment divest rights which have vested. Moreover, I think that we are committed to this view by our judgment in Bottjer v. Supreme Council ( 78 App. Div. 546 ).

The judgment must be affirmed, with costs.

Hooker, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.

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