The opinion in this case makes the injunction order granted by the Supreme Court a useless formality and a nugatory process. I cannot agree that the injunction, which concededly restrained the officers from expelling Griffith Evans from the Royal Arcanum for the alleged non-payment of dues, was useless and a vain and empty effort upon the part of the court to preserve his rights. The officers and the *Page 505 organization were restrained, but a by-law or contract of the member, it is said, was so passively effective as to nullify the injunction.
Griffith Evans was a member of Rome Council, No. 150, of the Royal Arcanum. He was sixty-five years of age and had paid dues for over twenty-five years. The organization had increased his dues from $1.86 to $3.44 and then to $6.33 a month, and finally, when he became sixty-five years of age, to $16.08 a month. This action had been held illegal by our court. (Green v. SupremeCouncil of the R.A., 206 N.Y. 591.) He tendered in payment of his dues the amount which the courts had determined was all that could be demanded. The tender being refused, and threatened with expulsion, he resorted to the courts for determination of the controversy. The Supreme Court, upon his application, granted an injunction reading as follows:
"Ordered, that the above named defendants, their officers, agents, attorneys and employees, and any and all other persons be, and each, and all of them are hereby enjoined, restrained and prohibited from suspending the plaintiff, as a member of the defendants, and from in any manner interfering with his rights and privileges in said Supreme Council of the Royal Arcanum, or in said Rome Council, No. 150, of the Royal Arcanum, until the further order of this Court."
A bond was given to accompany the injunction, agreeing to indemnify defendant for any loss or damage occasioned by reason thereof. The supplemental complaint, according to the agreed statement of facts, asked that the valid legal rate of assessment be determined. This court is now about to hold that this injunction did not prevent the expulsion of Griffith Evans; that the working of the by-laws of the association did that which the association was restrained from doing. The by-laws read: "Any member failing to pay any rate or assessment *Page 506 before the time prescribed for such payment in the laws of the order or to pay any extra assessment within the time limited or prescribed therefor in the notice thereof shall stand suspended from the order and all benefits therefrom." The prevailing opinion states that while the Supreme Court enjoined his expulsion and sought by means of injunction and bond to preserve the membership until the amount of the dues should be determined by the court, yet the effort was abortive as the member expelled himself under the by-laws for the non-payment of the dues demanded. To state such a proposition is to answer it. What was the object of resorting to the courts to determine the controversy between the member and the order if the court had no power to grant relief? We are about to decide that the very contract which the court was called upon to construe deprived the court of jurisdiction. Careful search fails to discover any case where equity is without power to maintain the membership in an organization like the Royal Arcanum until a controversy over that membership is settled. The following cases indicate that such power does exist. In Meyer v. Knickerbocker Life Ins. Co. (73 N.Y. 516) it was decided that a suit in equity would lie to determine the rights and obligations of the parties where the plaintiff had tendered his premium and the defendant has refused it, claiming the policy forfeited. In Langan v. SupremeCouncil A.L.H. (174 N.Y. 266, 271) an amended by-law of the defendant reduced the maximum death benefit to $2,000. The plaintiff held a benefit certificate for $5,000 and considered the by-law illegal. He tendered the assessment for the higher amount, and it being refused, brought action for breach of contract. It was held that there was no breach of contract which justified an action for damages, but that he "might resort to a court of equity and, upon the facts, ask its intervention in a decree which would compel the defendant to live up *Page 507 to its contract and which would restrain it from proceeding under its void by-law." The Langan case has frequently been cited with approval as authority for the proposition that the courts of this state may interfere by injunction to preserve contract rights. (Kelly v. Security Mutual Life Ins. Co., 106 App. Div. 352;186 N.Y. 16; Mock v. Supreme Council of R.A.,121 App. Div. 474; Rockwell v. Knight Templars M.M.A. Assn.,134 App. Div. 736, 742.)
The undertaking furnished, as in this case, saves harmless the association from any damage accruing by reason of the injunction. It is said that the member does not agree to remain in the order provided the court determines that the higher amount is due. He remains a member as long as the injunction continues, and his bond is liable for the dues ultimately determined as the amount payable under the by-laws. No other reasonable interpretation can be given to the proceedings. The spirit and the fair intent of the injunction order should govern. (Stolts v. Tuska, 82 App. Div. 81;People ex re. Mayor, etc., N.Y. v. Pendleton,64 N.Y. 622, 624.) We have held as to contracts that the obligation to do a certain thing upon the part of one party may imply an obligation upon the part of the other. (Wood v. Duff-Gordon,222 N.Y. 88.) When, in this case, the plaintiff asked that his membership be continued by an injunction, and furnished a bond to pay damages, he agreed in so doing to pay the dues up to the dissolution of the injunction. There would be no other damages to pay, and the giving of the bond would otherwise be frivolous. The supplemental complaint — a part of the agreed statement of facts — asks that Evans be declared a member in good standing at his death and the amount of the assessments till then determined.
Before Griffith Evans' action came to trial, he died, and his widow, as executrix, was substituted in his place *Page 508 and a supplemental complaint served in which she states that the estate is ready to pay the increased amount if the court should determine that such were the sum due, and further asks that the membership certificate be declared in force and effect. Objection is made, in the main opinion, to the continuance of the action by the executrix. It is said that the estate has no interest in the costs. This may be so, but the executrix has an interest in protecting the estate from liability upon the bond given on the injunction and also in having judicially determined the liability of Griffith Evans upon the membership certificate up to the time of his death. The validity of this point seems to be predicated upon the correctness of the opinion that the certificate of membership was canceled.
The fact that Green v. Supreme Council of the R.A. (206 N.Y. 591) was subsequently reversed by the United States Supreme Court (237 U.S. 531) can have no further effect than if our own Supreme Court had decided upon the trial of the Evans' action that the increase in rate was proper. The judgment which has been entered in this case by the lower courts follows the decision of the United States Supreme Court in determining that the rate of dues for Evans was $16.08 per month, and further holds that Griffith Evans was a member of the Royal Arcanum up to the time of his death, that his contract of insurance was then in full force and effect, and that the defendant recover from the plaintiff the full amount of the dues according to this increased rate. The death of Griffith Evans and the error of this court are but incidents in this litigation and in no way affect the jurisdiction and relief which a court of equity may afford.
HISCOCK, Ch. J., CUDDEBACK and ANDREWS, JJ., concur with McLAUGHLIN, J., and CARDOZO, J., concurs in result; CRANE, J., reads dissenting opinion; POUND, J., not voting.
Judgments reversed, etc. *Page 509