Born v. Perkins

Headnote

Born v. Perkins, 173 App. Div. 214 , affirmed.

Appeal from a judgment, entered August 5, 1916, upon an order of the Appellate Division of the Supreme Court in the third judicial department, overruling plaintiffs’ exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing a judgment in favor of defendant dismissing the complaint in an action to recover a death benefit alleged to be due pursuant to a provision of the by-laws of the defendant Cigarmakers’ International Union. The sole question at issue was the proper interpretation of a portion of section 146 of such by-laws, the essential part of which is as follows: “ When becoming a member of the union each member shall designate 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 at any time by notice in writing to the secretary of the local union. For this purpose blanks shall be furnished by the International President. But in case any member shall fail to so designate, by will or otherwise, to whom said sums shall be paid, the sums above mentioned shall be paid to the heirs-at-law. All international

and local indebtedness due by said deceased member shall be deducted from the death benefit due.” It was admitted that the deceased member never made any designation of a beneficiary, either in the mode provided by the by-laws, or by will. It appeared that the plaintiffs did not learn of the death of said deceased and, therefore, made no claim for payment of such benefit money until more than one year after the death of the deceased. Plaintiffs contended that under the second paragraph of the section above quoted the heirs at law were entitled to payment without compliance with the requirement of the first paragraph that a claim in writing should be made within one year. Furthermore that they, not having knowledge of the death, were excused from compliance with such requirement until a reasonable time after they had obtained such knowledge.