The complaint alleges that the plaintiff is a resident of Albany county, and that the defendant is the president of the Cigarmakers’ International Union, an unincorporated *392association, etc., and that there are local unions of this organization in thé city of Albany, and that Mary E. Tierney, at the time of her death, was a-member in good standing of Local Union No. 68. It further alleges that under the provisions of sections 143, 144 and 144c of the constitution of the Cigarmakers’ International Union of America, members in good standing at the time of their death were entitled to certain funeral and death benefits, and that under the provisions of section 144c, if no beneficiary was designated by such member, “ such benefits shall be paid to the widow of such deceased member; if there be no widow, then to the minor children of such deceased member; and if there be no widow and no minor children of such deceased member, then to any relatives of the deceased member who at the time of his death were dependent for support in whole or in part upon such deceased member.” The complaint then alleges the death of Mary E. Tierney,, at the city of Albany, “ leaving her surviving her husband, Cornelius F. Tierney, plaintiff in this action, and without leaving any descendants her surviving.” It is alleged that said Mary E. Tierney did not in her lifetime make any designation of a beneficiary; that she left no property or estate, “ except the death and funeral benefit accruing from the said Cigarmakers’ International Union of America,” and that the plaintiff has become liable for the funeral expenses, and that “ the plaintiff is a relative of said Mary E. Tierney, to wit, her surviving husband; and that at the time of the death of the said Mary E. Tierney, plaintiff was dependent for support, in part, upon the said Mary E. Tierney; that plaintiff is a workingman and is not now, nor has he ever been, possessed of wealth or independent means,” and he alleges that during their married life the decedent acted as his housekeeper, and that by her services in this capacity she contributed materially to plaintiff’s support, and that they were mutually dependent upon each other for their support and maintenance; that “ by the laws of the State of New York in force at the time of the death of said Mary E. Tierney, plaintiff was entitled to the said services of his said wife, rendered in his said household as aforesaid, without paying any compensation therefor; that plaintiff was the only relative of said Mary E. Tierney, dependent for support, *393either in whole or in part, upon said Mary E. Tierney at or before the time of her death.” The complaint then makes the allegations as to his proofs of death, etc., and demands judgment for $550, the amount of the funeral and death benefit to which her beneficiary would be entitled.
There is here no suggestion that there was ever any other constitution than that set forth in the complaint, and, judging from the evidence, the case went to the jury upon the theory that the plaintiff, as the surviving husband of Mary E. Tierney, was dependent upon her in some degree for his support; a large part of the testimony was devoted to showing that the said Mary E. Tierney helped her husband in some measure in the carrying on of his business as a peddler of garden produce, and the only fair construction of the evidence showed conclusively that the plaintiff, so far from being dependent upon his wife for support, was the sole support of himself and wife, with such incidental help in the way of dressing fowls for customers and in keeping his small accounts as the wife of a relatively poor man would naturally be expected to afford, and which he tells us in his complaint he was entitled to without compensation. The judgment in the City Court was clearly predicated upon this evidence, and upon appeal to the County Court this judgment was affirmed.
The plaintiff, the respondent on this appeal, now urges that the constitution of the Cigarmakers’ International Union of America was amended in 1912 so that it excluded heirs at law as beneficiaries, and that this was such a violation of the obligation of the contract as to make the amendment void as to this plaintiff. It is hardly necessary to consider whether such amendment in any manner affected the plaintiff as the surviving husband for the reason that no such issue was tendered in the courts below; the plaintiff pleaded the constitution as it now is and claimed the right to recover as the only surviving relative who was in any degree dependent upon the decedent. Having recovered upon that theory, the judgment must be supported, if at all, upon the theory on which it was rendered, and this obviously may not be done. In a general sense, of course, we are all dependent upon each other; our peace, health, comfort and safety depend, in a measure, upon the acts of others, but to suggest that a *394husband, in the full possession of his faculties, earning a livelihood for himself and his wife, with those incidental helps which a dutiful wife would render in the way of aiding in the preparing of fowls for customers, or keeping his trifling accounts, is in any legal sense dependent upon his wife, is absurd. “ Trivial or casual, or perhaps wholly charitable assistance, would not create a relation of dependency, within the meaning of the statute or by-laws. Something more is undoubtedly required. The beneficiary must be dependent upon the member in- a material degree for support, or maintenance, or assistance, and the obligation on the part of the member to furnish it must, it would seem, rest upon some moral, or legal, or equitable grounds, and not upon the purely voluntary or charitable impulses or disposition of the member.” (Wilber v. New England Order of Protection, 192 Mass. 477, 479, and authority there cited.) There is not a thing in the evidence to show that the plaintiff in this action was in any degree less able to care for himself than he was to care for himself and wife with her assistance, so that if we assume a surviving husband to be a relative within the meaning of the constitution here under consideration he was not entitled to the death benefit, and the defendant had already offered to pay the funeral benefit.
Of course, a husband is not a relative of his wife. (Esty v. Clark, 101 Mass. 36; Lavigne v. Ligue des Patriotes, 178 id. 25, 29; Gallagher v. Crooks, 132 N. Y. 338, 343.) They are merged in one during life (Esty v. Clark, supra, 39, and authority there cited), and upon the death of either the survivor cannot, of course, bear any relationship to the deceased. The constitution here under consideration made provision, not for a surviving husband, but for a surviving widow, and the suggestion is made .that under our Statute of Distributions a surviving husband is treated the same as a widow; but this does not give us any authority for reading into this' constitution, designed for a national association, the special provisions of the statute law of New York. The instrument under which the plaintiff made his claim provided for making the payment to the widow, and a widow, in technical as well as ordinary use, has reference to a woman who has lost her husband by death. (30 Am. & Eng. Ency. of Law [2d ed.], *395520,) It was squarely held in Wellington v. Drummer (69 N. H. 295) that “ widow ” did not include “ widower,” and it is to be observed that our Statute of Distributions does not attempt to make the words synonymous, but merely provides that the “ husband of any such deceased married woman shall be entitled to the same distributive share in the personal property of his wife to which a widow is entitled in the personal property of her husband by the provisions of this article and no more.” (Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 100.) The plaintiff was, therefore, not entitled to the death benefit upon any possible construction of the word “ widow;” he was not dependent upon his wife in any legal sense, and it is very doubtful whether he would be entitled to anything under the constitution as it is alleged to have been prior to the amendment. However this may be, the pleadings sought to recover under the constitution as it is, and the recovery must be sustained upon that basis or not at all, for judgments must be founded upon pleadings and proofs, and the pleadings and proofs now before us all go to the theory that the plaintiff is to be given the death benefit upon the ground that his wife was contributing to his support, and this is not sustained by any reasonable construction of the evidence.
The judgments and order appealed from should be reversed, with costs.
All concurred, except Kellogg, P. ,J., who dissented in memorandum, in which Lyon, J., concurred.