(dissenting) :
I cannot agree with the prevailing opinion, and for the reasons stated below.
The plaintiff sued for the recovery of $1,220.23 and obtained a warrant of attachment against the property of the defendant, on the ground of a fraudulent disposition or concealment of his prop*395erty. The sheriff levied upon a bond and mortgage for $1,500, made by Oyrus B. Case to the defendant on June 29, 1896. The defendant’s wife was a beneficiary member of the “ Supreme Council of Boyal Templars of Temperance;” which had issued its certificate to the defendant as her beneficiary. She died on January 18, 1896. On the surrender of her certificate according to its terms and the constitution and by-laws of the society, the latter issued to him the draft of the council for $2,000, the amount named in the certificate. On June twenty-ninth, the defendant indorsed' the draft to Oyrus and received in return the bond and mortgage in question and his note for $500. This constitutes a clear identification of the moneys received from the society with the-money secured by the bond and mortgage in question. The question raised upon this appeal is whether the money secured by the bond and mortgage is exempt from the levy of the sheriff. The court at Special Term held that it was, and the plaintiff appeals.
The society in question was incorporated by a special act of the Legislature (Chap 586, Laws of 1880). Section 3 provides as follows : “ The objects of said corporation shall be to improve the moral, mental and social conditions of the membership of the order to induce men to lead sober, industrious and Christian lives; to prevent, by just means, the growth of intemperance; to aid in saving from its evil effects those already addicted to intemperate habits, and to aid and assist the membership and their families in case of want, sickness or death.”
The Insurance Law (Chap. 690, Laws of 1892) contains in certain sections the culmination of previous legislation upon the exenq> tians of moneys received from fraternal societies by members or beneficiaries, and it is not necessary to trace previous legislation upon the subject. Section 230 of that act authorizes the incorporation of fraternal beneficiary societies for the relief of members or beneficiaries, in case of sickness, disability or death; and section 233 provides that all beneficiary societies, orders or associations theretofore existing, the members of which are proposed and elected in subordinate lodges, councils or other bodies, according to their constitutions and by-laws, shall be “ mutual benefit fraternities.”
The charter, constitution and certificate of the Boyal Templars of Temperance, contained in the record, show that it had a supreme *396council and subordinate councils and membership therein and that the certificate for $2,000 was issued by the supreme council to the defendant’s wife as a member of one of said councils, so that the society is clearly brought under the operation of the act of 1892; and this brings us to the question whether the money received on the certificate was exempt from levy under process against a beneficiary.
Section 238 declares: “ All money or other benefit, charity, relief or aid to be paid, provided or rendered by any such society, order or association, whether voluntary or incorporated under this article or any other law, shall be exempt from execution, and shall not be liable to be seized, taken or appropriated by any legal or equitable process, to pay any debt or liability of a member, beneficiary, or beneficiaries of a member.” It seems clear to me that under this provision the money received from the society was exempt from execution or process, and as the money is clearly traced into and identified with the bond and mortgage, they also are exempt from a levy under the attachment.
The argument of the, prevailing opinion is based on the theory that while the money remains exempt before and until it is paid to the beneficiary, yet such exemption ceases the instant the money is actually paid. It is difficult for me to discover any benefit which would accrue to the beneficiary under such a construction. The beneficiary is told that as long as his claim is unpaid it cannot be reached by a creditor, but as soon as it is paid his creditor can seize it. This is keeping the promise to the ear and breaking it to the hope. The manifest intention of the Legislature was to enable a person to provide means which after his death should go to the support of persons dependent upon him in liis lifetime and likely to be left in need by reason of his death. To my mind it seems, unreasonable to say that so long as these beneficiaries are not reaping, and cannot by collecting the money resulting reap, any benefit from the prudent foresight of their supporter, the money is exempt from execution, but that as soon as they do collect, any creditor may seize it; and yet this is .the logical deduction of the prevailing opinion, and to such a proposition I cannot assent.
The plaintiff, also, contends that the section is limited to societies existing at the time of its passage, which should re-incorporate *397under the permission contained in section 231. This contention is disposed of by Matter of Lynch (83 Hun, 462), where the court laid down a contrary doctrine. This case was affirmed by the Court of Appeals, on the opinion below (150 N. Y. 560). Commercial Travelers' Assn. v. Mewkirk (16 N. Y. Supp. 177), cited by the plaintiff, was decided by Mr. Justice Yann, at Special Term, in 1888, but it can hardly be considered authoritative now, since he did not dissent from the decision affirming Matter of Lynch (supra), though he did .not vote.
I think that the order should be affirmed.
Woodward, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.