p. 495fee, and the further payments provided in the by-laws. Printed on the back of the certificate was a copy of article 6 of the bylaws, providing for making an assessment on members, as therein stated, to pay death losses. But one assessment, under the by-laws, could be levied for any one death loss. Isaac Meyers died while the certificate was in force and while he was a member in good standing in the company. The certificate then became due and payable to the relator. One assessment was made upon the members in conformity with defendant’s by-laws and regulations, and the relator was paid a certain proportion of the amount -of the certificate, which he acknowledged as payment in full of his claim by reason of the death of said Isaac Meyers. Subsequently the relator brought an action against the defendant to recover the balance alleged to be due on such certificate, and that action resulted in a judgment against the defendant for the recovery of such balance. The findings of the court made upon the trial of such action are contained in the record herein, from which it appears that an assessment was made for the purpose of providing a fund with which to pay the amount named in the -certificate, and such assessment had been paid, and the defendant had on hand, or should have had, as the court found, the moneys derived therefrom, which were sufficient to pay the amount stated in the certificate, but which payment had only been made in part. It was further found that the defendant had sufficient surplus funds in its possession for the payment of the plaintiff’s claim in full, and which claim would have been fully paid and satisfied therefrom, and the defendant had promised to pay the claim from such surplus fund in its possession. The company failed to pay, however, and judgment for the balance was given, which was duly entered, and no appeal was taken. The plaintiff in the action duly issued execution upon the judgment, and it was returned wholly unsatisfied.
The relator then commenced these proceedings to compel the •defendant by mandamus to make another assessment upon the members holding certificates in the defendant company and to continue making them to an amount equal to the sum of the j udgment until it was fully paid and satisfied. The special term granted the writ substantially as asked for and its order was affirmed at general term, and from the order of affirmance the defendant has appealed here.
Adolphus D. Pape, for app’lt; John W. Lyons, for resp’t.
The certificate was the contract entered into by the defendant. Its liability to pay a death loss, and the manner in which it should do it, were provided for in the by-laws. By the liability which the members assumed must they be judged. It appears that they are liable to pay but one assessment for each death loss, and that one has been already made pursuant to the provisions of the by-laws, and the members upon whom it was made have paid the same. By the affidavit of the secretary of the defendant it would seem that an amount only equal to three-fifths of the certificate had been the result of such assessment,
p. 496while the findings of the court in the action brought by the relator against the defendant show the defendant to have collected enough therefrom to pay the full amount of the certificate, or enough to pay it in full with the aid of the surplus which the court finds it had on hand. We think in neither event does there remain any liability on the part of holders of certificates of defendant to pay any further assessment If that be so. of course none should now be ordered.
One assessment having been paid, the members discharged their whole duty in the premises which they had contracted to perform. If the assessment did not result in enough to pay the certificate in full, that was no fault of theirs; they fulfilled their contract and could not be asked to perform any more. If the-assessment resulted in raising thereby enough to pay the full amount of the certificate, or if it so resulted in connection with the surplus funds of the defendant, the members were no insurers of the proper application of the fund to the payment of the certificate by defendant’s officers. Mandamus is no remedy to. compel them to pay any further assessment, for they are under no liability in the premises. How the relator shall collect his -judgment against the defendant is a question not before us. Ho case for a mandamus has been made out, and the orders of the general and special terms should be reversed and the motion denied, with costs in all courts.
All concur.