It does not appear by the agreed statement that there is any controversy or question in difference between the parties. The submission sets forth the articles of association of the defendant and the by-laws of the association, and the form of the certificate issued to its members, comprising class "A," and states that the company have issued to such members a certificate in the form as set forth, and that the defendant has never deposited $100,000, or any other sum, with the insurance department for any purpose whatever.
The question submitted is, "whether the defendant has the right to insert in the certificate of membership a provision for the payment of a sum not to exceed one-half of the amount stated in such certificate, upon the expiration of two-thirds of the life expectancy of the member, without depositing with the insurance department $100,000 for the protection of those members holding such certificates."
There is no statement that there is any controversy or question of difference between the parties upon the point presented for decision. The only statement is that the plaintiff insists that the defendant has no right to issue certificates in the form stated, and that such certificates are illegal. It is not alleged that the defendant asserted such right at the time when the submission was made, or did not yield to the claim of the plaintiffs. It is not inconsistent with the statement that the company had abandoned its use of the certificates. The question propounded may, so far as appears, be a mere abstract one not involving any actual difference or controversy. If the defendant is exercising franchises not conferred, or without *Page 624 complying with statutory conditions, it may be restrained by application to the court, but that relief cannot be given by any judgment which may be rendered in this proceeding. (Code, § 1281.)
The judgment should be reversed and the proceeding dismissed, without costs. (Dickinson v. Dickey, 76 N.Y. 602.)
All concur, except MILLER, J., absent.
Judgment reversed. *Page 625