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McClement v. Supreme Court of Independent Order of Foresters

169 A.D. 77 Court Fourth Department, Decision date 1915-07-07 English

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p. 77
Henry C. McClement, Respondent, v. The Supreme Court of the Independent Order of Foresters, Appellant.
Fourth Department,
July 7, 1915.

Headnote

Insurance — mutual fraternal benefit society—jurisdiction of Canadian society to increase rate of assessment.
The right of a Canadian mutual fraternal assessment benefit society to increase its rate of assessment is controlled by the laws of Canada, and the right of a member of a subordinate branch of the society located in this State to enjoin the society from increasing its rate of assessment depends upon the laws of Canada, although his contract was made and is to be performed in this State,
p. 78
Appeal by the defendant, The Supreme Court of the Independent Order of Foresters, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 30th day of January, 1915, upon the decision of the court after a trial at the Jefferson Equity Term.
Kellas, Genaway & Kellas [Elliott G. Stevenson, Thomas G. Long, George H. Cobb and John W. Genaway of counsel], for the appellant.
William H. Gilman [John Conboy of counsel], for the respondent.

The plaintiff, a member of a subordinate branch or court of the defendant, a Canadian mutual fraternal assessment benefit society, challenges the defendant’s right to increase the rate of its assessments upon him, because his court is located in this State and his benefit contract was made and to be performed in this State, as he contends.

We are of the opinion that this question has been decided adversely to plaintiff by this court in the Simmelink case. (Simmelink v. Supreme Court of Independent Order of Foresters, 152 App. Div. 892 ; 162 id. 93-1.) That was a suit against this same defendant by a member of the local court of this State, to enjoin defendant from increasing the rate of the assessments, and judgment was rendered to that effect. But upon appeal to this court the judgment was reversed and a new trial ordered. While we held in that case that the action was prematurely brought, we also held that the right of the defendant to increase its rates is controlled by the laws of Canada and not by the laws of this State. The case was again before this court after a new trial, and a judgment dismissing the plaintiff’s complaint was affirmed on the authority of our former decision ( 162 App. Div. 934 ). While the recent decision of the Federal Supreme Court in the case of Supreme Council of the Royal Arcanum v. Green ( 237 U. S. 531 ), decided June 1, 1915, reversing the Court of Appeals (Green v. Royal Arcanum, 206 N. Y. 591 ), involved the question of the full faith and credit

p. 79
article of the Federal Constitution (U. S. Const, art. 4, § 1), the reasoning of the opinion in that case, as well as the decision in Canada Southern R. Co. v. Gebhard ( 109 U. S. 527 ), seems to support the view that the law of Canada is controlling upon the question involved in the case in hand.

We are, therefore, of the opinion that we are required to reverse the judgment and dismiss the complaint, with costs.

All concurred.

Judgment reversed and complaint dismissed, with costs, including the costs of this appeal.

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