(dissenting):
The contract between the defendant society and the deceased member Eugene C. Fink was, as found by the trial court, to pay the beneficiary fund to the person or persons designated in the membership certificate. This certificate was to be. issued in the first instance according to the direction of the member in his application for membership. It being a mutual benefit assessment association, the statute gave the right to the member to change his 'beneficiary at will, subject only to the consent of the association to be obtained as prescribed by its by-laws. The only by-law relating to the subject provided that in case a member lost his certificate or,should ask for a new one, “ it shall be issued only upon the payment of twenty-five cents, said certificate to be marked duplicate or renewal as the case may be.” The deceased member did not ask any officer of the society, authorized to issue a certificate, for a new *514certificate, or tender to any such officer the payment of twenty-five cents as required by this by-law. It is true that he had taken steps to that end; but his application in this regard did not reach the proper officers of the society until the day after his death. The rights of the parties are to be determined upon the facts and the law as they existed at the time of the death of the member. At that time there was an outstanding beneficiary certificate, regularly and properly issued by the defendant society to its deceased memher, requiring the payment of the beneficiary fund in case of his death to his wife, the defendant Ellen Fink. Up to the time of the death of the member this outstanding certificate had not been canceled or revoked, nor had it been superseded by any new certificate, nor had the consent of the society, which is required by the statute and by this by-law, been obtained to a change of designation of beneficiary. There was evidence tending to show that the consent • of the decedent to the proposed change attempted to be made in the designation of beneficiary from his wife to his mother was brought about by coercion or duress; but the trial judge having reached the conclusion that the society had not consented to a change of beneficiary, and had not been duly requested so to do prior to the death of the member, refrained from deciding this controverted question of fact. In my opinion it is not sufficient that a member of a beneficiary order, with death staring him in the face, desires or determines to change his beneficiary, or that by application by mail or through an individual he requests or authorizes the change even in the manner required by statute and the by-laws, unless such application or- request shall have been received by or presented to • the proper official of the society authorized to act in the premises prior to his death. (Gladding v. Gladding, 29 N. Y. St. Repr. 485; Wilson v. Bryce, 43 App. Div. 491; Hellenberg v. District No. One of I. O. of B. B., 94 N. Y. 580; Thomas v. Thomas, 131 id. 205 ; Ireland v. Ireland, 42 Hun, 212; Luhrs v. Luhrs, 123 N. Y. 367; Supreme Lodge K. of H. v. Nairn, 60 Mich. 44.) The courts have in this class of cases in some instances applied the equitable rule that that which should have been done will be considered as done, and the rights of the parties determined accordingly; but there is no ground for the application of that rule where neither the society nor any of its officers authorized to act in the premises is in default in having *515failed to comply with any proper request duly made by or in behalf of the member during his lifetime.
For these reasons I dissent from the prevailing opinion and vote for an affirmance of the judgment appealed from.
Judgment reversed and new trial ordered, with cqsts to appellant against the respondent Ellen Fink to abide event.