Born v. Perkins — 173 A.D. 214

Majority

p. 214

Wallac Born and Julia Born, as Sole Heirs at Law of James Born, Deceased, Plaintiffs, v. G. W. Perkins, as President of Cigarmakers’ International Union of America, Defendant.

Third Department,

May 3, 1916.

Headnote

Insurance — benevolent association—by-laws — requirement that death claim be made within stated time—by-law binding upon heirs of member—knowledge of member’s death immaterial.

The by-law of the Cigarmakers’ International Union, an unincorporated association having an insurance benefit, which provides that all claims for benefits on the death of a member shall lapse and revert to the union,

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unless claim is made within one year after such death, is valid, and is binding upon the heirs at law of a member who forfeits the right to a benefit by failure to make timely claim, although they did not learn of the member’s death until four years after that event.

Motion by the plaintiffs, Wallac Bom and another, for a new trial upon a case contáining exceptions, ordered to be heard at the Appellate Division in the first instance, upon a dismissal of the complaint by direction of the court at the close of plaintiffs’ case after a trial before the court and a jury at the Albany Trial Term in January, 1916.

William Goldberg [Louis J. Bezzemini of counsel], for the plaintiffs.

Mills & Mills [Borden H. Mills of counsel], for the defendant.

The complaint in this action- alleges that the Cigarmakers’ International Union of America is an unincorporated association having an insurance benefit, and that one James Born was a member of a local union in the city of New York, in good standing, at the time of his death on the 4th day of May; 1909, and had been a member in good standing for a period of fifteen years. Section 146 of the by-laws, it is claimed, provides that if the member has been such member for fifteen consecutive years the beneficiaries named or provided by law shall be entitled to receive $550 on his death. The pleadings admit the most of the material allegations of the complaint; and the important question in the case is whether the plaintiffs have a right to recover the amount named four years after the death of James Born, the by-laws providing that the right to such benefit shall be limited to one year after the death of the insured.

The by-law, which does not appear to be in full and which is not shown in connection with the insurance scheme generally, provides, so far as appears in the pleadings, that “The International Union shall pay to the persons hereinafter mentioned, upon the death of a member, the following sums, * * * Third. If the member has been such for at least fifteen consecutive years, five hundred fifty dollars ($550). When becoming a member of the union each member shall designate

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the person, to whom the aforesaid beneficiary money shall be paid, or he may name, as such person, his heirs, or he may name, as such beneficiary, his legatees. * * * If he shall fail to make any such designation and shall not leave a will in which he shall make such designation, or if no claim in writing, duly verified by the claimant, to such beneficiary money, is made by any of the above mentioned persons, or their heirs or legal representatives, within one year after the death of the member, all claims therefor shall lapse and end, and said beneficiary money shall revert to the union. A member may change his beneficiary, * * * but in case any member shall fail to so designate by will or otherwise to whom said sum shall be paid, the sum above mentioned shall be paid to the heirs-at-law.”

. The parties to this insurance contract mutually agreed that the sums mentioned should be paid to a person named on the member joining the union, his heirs or his legatees, and that, in the event of the member failing to designate the person, the payment should be made to his heirs at law. This was conditioned, however, upon the claim being presented “in writing, duly verified by the claimant, to such beneficiary money * * * by any of the above mentioned persons, or their heirs or legal representatives within one year after the death of the member,” and failing this the benefit was to lapse and become the property of the union. The parties clearly had a right to make this agreement, and we know of no rule of law which would justify holding that merely because the heirs at law of J ames Born did not learn of his death until four years after that event the fund which had become vested in the union should be taken away and vested in these plaintiffs. The suggestion that the clause which provides that if the member has failed to make a designation the “ sum above mentioned shall be paid to the heirs-at-law,” is freed from the limitation of one year, is wholly without merit. The original clause, providing the benefit, gives the insured the option of naming a beneficiary, or of designating his heirs at law or his legatees, and then the language is that “if no claim in writing * * * is made by any of the above mentioned persons [his appointees, his heirs-at-law or his .legatees] * * * within one year

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after the death of the member, all claims therefor shall lapse and end,” etc. Clearly the heirs at law were as much required to make the claim in writing as any other persons mentioned, and the effort to avoid the conditions upon which the benefit was to be paid must fail.

The complaint should be dismissed, with costs.

All concurred.

Exceptions overruled and complaint dismissed, with costs.