#### Rose Sinclair, Individually and as Administratrix, etc., Appellant, *v.*Mary Fitzpatrick, Impleaded, Respondent.

(Supreme Court, Appellate Term, Second Department,

October, 1912.)

Fraternal benefit associations — vested right of members — amendment to by-laws.

Where plaintiff’s intestate joined a fraternal order whose charter and by-laws gave him the right to name the beneficiary, whether related to him or not, and to change the beneficiary on application and payment of fees, such right cannot be affected by a subsequent amendment of the by-laws or charter.

Appeal by plaintiff from a judgment of the Municipal Court of the city of Few York rendered in favor of defendant.

John O. L. Daly (Francis A. McOloskey on brief), for appellant.

Arthur E. Engel, for respondent.

*Per Curiam.*

Supreme Council, Catholic Knights of America was incorporated by the general assembly of the commonwealth of Kentucky, April 1, 1880. Section 2 of the act of incorporation reads: “The object of the corporation shall be * * * to establish and maintain a benefit fund from which a sum not to exceed $2,000 shall be paid at the death of each member to his family, or be disposed of as he may direct.”

The deceased, James Sinclair, became a member of Branch No. 204 of this order on May 3, 1899, at which time section 6 of the by-laws stated the object of the order in the following words: “ to establish a benefit fund from which * * * a sum not exceeding $2,000 shall be paid as he may have directed in his benefit certificate.” And section 161 provided as follows: “Each member may enter upon his application the name or names of the members of his family or those to whom he desires the benefit paid *61* ***A member may at any time, when in good standing, change his beneficiary upon complying with the requirements hereinafter provided and upon surrender of his benefit certificate and payment of a fee of fifty cents.”

Subsequently and in 1903 the by-laws were modified so as to restrict the beneficiaries to “ blood relatives, affianced wife or husband, or to a person dependent upon the insured.”

At the time the deceased, James Sinclair, joined the order his contract, consisting of the charter and by-laws, provided that he could name any beneficiary whom he chose, whether related or not, and could change the beneficiary upon making application and paying the fees. This was a substantial right which could not be taken away by subsequent amendment of the by-laws or charter. Wright v. Knights of the Maccabees, 196 N. Y. 391; Spencer v. Grand Lodge of A. O. U. W., 22 Misc. Rep. 147; Roberts v. Cohen, 60 App. Div. 259. The modification of the by-laws, therefore, restricting beneficiaries to blood relatives as above quoted did not refer to the deceased or his contract, but only to those thereafter joining the order. The deceased, therefore, could at any time change his' beneficiary and designate whom he pleased.

It may be a question as to whether this amendment of the by-laws is of any force as to any member as the charter above quoted from provides that the fund may be disposed of as the insured may direct.- By-laws cannot be inconsistent with the charter and there is no evidence before us that the charter has ever been amended in this particular.

When, therefore, the deceased, James Sinclair, changed his beneficiary in April of 1901 from his sister, Rose Sinclair, to the defendant, Mary Fitzpatrick, and received a certificate promising to pay her the amount of the insurance, it was immaterial whether she were a relative or not. The judgment of the Municipal Court awarding the fund in" question to Mary Fitzpatrick is affirmed.

Present: Ceane, Putnam and Aspinall, JJ.

Judgment affirmed.