Wiedynska v. Pulaski Polish Benev. Soc. — 97 N.Y.S. 413

Majority

p. 413

(110 App. Div. 732.)

WIEDYNSKA v. PULASKI POLISH BENEV. SOC.

(Supreme Court, Appellate Division, Second Department.

January 26, 1906.)

Headnote

, Insurance—Mutual Benefit Insurance—Amendment of Contract—Validity.

It is not within the power of a benevolent association to so amend its constitution and by-laws, without the consent of or notice to a member, as to reduce the sick benefits payable to the member under his contract with the association.

[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, § 1855.]

Appeal from Municipal Court, Borough of Brooklyn, First District.

Action by Magdalena Wiedynska, as administratrix of Frank Bosikowski, against the Pulaski Polish Benevolent Society. From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before JENKS, HOOKER, RICH, and MILLER, JJ.

Thomas Kelby, for appellant.

Henry J. Davenport, for respondent..

Plaintiff’s intestate was a member of a benevolent society. The constitution and by-laws are in the Polish. language. No

p. 414

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 arid 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 riionths, 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 $2 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, 131 Hun, 49 . His contention is also sustained by the judgment in Pain v. Societé St. Jean Baptiste, 172 Mass. 319 ; 52 N. E. 502 , 70 Am. St. Rep. 287 , wherein Poultney’s Case, supra, is cited. But in Parish v. New York Produce Exchange, 169 N. Y. 34 , 36, 61 N. E. 977 , 56 L. R. A. 149 , 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, 178 App. Div. 546 , 75 N. Y. Supp. 805 , 79 N. Y. Supp. 684 .

The judgment must be affirmed, with costs, All concur.

Cases cited

Consider Parish v. New York Produce Exchange 169 N. Y. 34 N.Y. 1901-12-10 at 36, 61 p. 414