People ex rel. Myers v. Masonic Guild & Mutual Benefit Ass'n

Majority

p. 171

People ex rel. Myers v. Masonic Guild & Mut. Ben. Ass’n.

(Supreme Court, General Term, Second Department.

December 10,1890.)

Headnote

Mandamus—Mutual Benefit Companies—Assessments.

Under a certificate of membership in a mutual benefit association, plaintiff was entitled, on the death of the member, to a certain sum, for which an assessment was to be made on all the members. Part only of that sum having been paid on the death of such member, plaintiff recovered judgment for the amount unpaid, but execution thereon was returned unsatisfied. Held, that a mandamus might be granted to compel the association to make an assessment on the members to pay the judgment.

Appeal from special term, Orange county.

Application, on the relation of Emmet Myers, for a mandamus requiring the Masonic Guild & Mutual Benefit Association to make an assessment upon members of the association to pay a judgment against it in favor of relator. From an order that such mandamus issue, the association appeals.

p. 172

Argued before Barnabd, P. J., and Dykman, J.

Adolphus B. Pape, for appellant. John W. Lyon, for respondent.

The defendant issued to Isaac Myers a certificate entitling the plaintiff to $3,000 on the death of Isaac Myers. Isaac Myers died, and the plaintiff brought this action to recover the amount. By the judgment of this court, the plaintiff recovered a judgment for the sum of $1,600, with interest from the 10th of August, 1884, that being the amount unpaid on the certificate. By the agreement between Isaac Myers and the company defendant, an assessment was to be made on all the members so as to pay the full sum of $3,000, within 30 days after notice of death. This has not been done. An execution fails to obtain property to satisfy the judgment. The case is one without remedy if the company cannot be compelled by mandamus to perform an act which by the contract was to produce the fund. The duty is clear. It is the contract. The society is a mutual one, and an assessment is the method by which the benefits of the association are attainable. There is no remedy by action; that has been tried, and, except so far as it overruled the question now waged as a defense, was fruitless. It is not collecting a debt by mandamus. The effect of the writ is only to make a board of managers do a certain duty which they owe to the plaintiff. The plaintiff has a clear legal right, and no other remedy. Mandamus is not the proper remedy until after judgment. Boty v. Assoaiation, 9 N. Y. Supp 42 . The judgment should therefore be affirmed, with $50 costs.