Hyperlawhypertext legal database People ex rel. Myers v. Masonic Guild & Mutual Benefit Ass'n 65 N.Y. Sup. Ct. 395

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

65 N.Y. Sup. Ct. 395 Court N.Y. Sup. Ct. English

Judges Dykman, J., concurred; Pratt, J., not sitting.

Delivered by Barnard, P. J.:

Contents

Majority

p. 395
THE PEOPLE OF THE STATE OF NEW YORK ex rel. EMMET MYERS v. THE MASONIC GUILD AND MUTUAL BENEFIT ASSOCIATION, Appellant.

Headnote

Mandamus — to compel a mutual benefit association to make an assessment.
Alter a judgment has been recovered, upon a certificate of insurance, against a. mutual benefit association which has refused to make an assessment for the purpose of paying an amount payable under the terms of the same, and an execution issued thereon has been returned unsatisfied, the' association will be compelled by a mandamus to make an assessment for the purpose of obtaining the fund with which to pay the certificate.
Appeal by tbe Masonic Guild and Mutual Benefit Association-from an order of the Supreme Court, entered in the office of the clerk of tbe county of Orange on tbe 16th day of June, 1890, directing that a peremptory mandamus issue directed to and commanding tbe said Masonic Guild and Mutual Benefit Association to-make and call an- assessment upon all the members of its company or association, in tbe usual way of making such calls or assessments, and to continue calling or making tbe same, to an amount sufficient to equal the judgment recovered in said court on tbe 19th day of February, 1889, in favor of Emmet Myers and against the Masonic Guild and Mutual Benefit Association, for tbe sum of $2,247.40 damages and costs.
Adolphus D. Pope, for tbe appellant.
John W. Lyons, for the respondent.

Tbe defendant issued to Isaac Myers a certificate entitling tbe plaintiff to $3,000 on tbe death of Isaac Myers. Isaac Myers died and tbe plaintiff brought his action to recover the amount. By tbe judgment of this court tbe 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 thirty days after notice of death. This has not been done. An

p. 396
«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 hy mandamus. The effect of the writ is only to make a board of masters 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. (Doty v. N. Y. State Mutual Benefit Association, 29 N. Y. St. Rep., 896 .)

The judgment should, therefore, be affirmed, with fifty dollars costs.

Dykman, J., concurred; Pratt, J., not sitting.

Order granting mandamus affirmed, with fifty dollars costs.