(dissenting):
The by-laws of the fraternal organization issuing the benefit certificate designated explicitly who might be beneficiaries. This *51group did not include a stepson, but did include a “ member of his family whom the applicant shall designate in his application.” And further, that “ No payment shall be made upon any benefit certificate to any person who does not bear the relationship as * * * member of the family of the member at the time of his death.”
For convenience I will hereinafter refer to the fraternal organization as the “ insurer,” and to Mr. Bohan, the deceased member, as the “ insured.”
The question to be determined then is the meaning of the term “ member of the family of the member at the time of his death.” It is a case largely of first impression, for no controlling authorities have been cited by counsel, nor have we been able by our own industry to discover any decisive under the facts here presented.
As my brother Taylor has pointed out, the common definitions of “ family ” or its constituent “ members ” are not particularly helpful in reaching a decision here. We must look then to the meaning the parties themselves had in mind when they entered into the contract.
It may be said generally that a member of a family by blood does not lose his status when he leaves the parental roof and makes elsewhere a home of his own. (Matter of Shedd, 60 Hun, 367; affd., 133 N. Y. 601.) Relationships established by marriage ordinarily continue and are recognized as long as the marriage exists. But if the tie is broken by death or otherwise, the relationship is ordinarily regarded terminated after a lapse of time or by separation, lack of association, or the formation of new relations. The same rule is applicable in the case of foster children, servants and others who come into a family and live there for a long time. A feeling of attachment grows up between the different members of such a family, the relationship is recognized and such persons are commonly spoken of as members of the family because they live in the same household. But when the tie is broken and the members are separated by distance and are no longer in intimate association, but those departing form new ties, and set up homes and have families and interests of their own, there can be no doubt that they cease to be members of the original family in the household where they once lived. In this respect their status is different from children or other blood relatives who follow the same course.
In the case under consideration the parties to the contract had a definite agreement and understanding as to what should constitute a member of the family qt the time of the death of the insured. The certificate or policy provided: “ That all the conditions and agreements contained in said member’s application *52for beneficial membership and in this certificate and in the by-laws of this society * * * shall be fully complied with; ” and provided further that “ If any beneficiary named in this certificate shall die * * * or in the event of the disqualification of such beneficiary * * * and if such member shall have failed to have had another beneficiary named in the place and stead of such deceased or disqualified beneficiary, then the amount specified to be paid such deceased or disqualified beneficiary * * shall be payable in accordance with the by-laws.”
It is evident then that both insurer and insured had in mind that the beneficiary might by death or disqualification eventually lose his right to receive payment under the terms of the certificate.
Before the policy was issued the insured made an application to change the beneficiary, formerly his wife, then deceased, and asked that DeRoller (not eligible as stepson) be substituted as beneficiary. In connection therewith he made a “ relationship statement ” for the purpose of establishing DeRoller’s right to be designated. This statement consisted of printed questions on a blank furnished by the insurer and answered by the insured. The sole reason why the insured was entitled to name plaintiff as his beneficiary was that the latter was a member of the former’s family. He had been a stepson. His mother the wife of insured, had died but DeRoller was continuing to live in the household as a member of the family of the insured. Certain questions and answers in the statement are as follows: “ Q. Do you and the said proposed beneficiary live in'the same house? A. Yes. Q. How long have you done so? A. About nineteen years. Q. Are you members of the same family circle? A. Yes. Q. If so, how long have you been? A. About nineteen years. Q. Who is the head of the family in which you reside? A. I am. Q. Do you and said proposed beneficiary usually eat at the same table? A. Yes. Q. Do you and said proposed beneficiary usually sleep in the same house? A. Yes.”
Before the policy was issued the insured was notified that the insurer deemed plaintiff eligible to be his beneficiary under the relationship of “ member of immediate family.” His attention was called to the by-laws that no payment could be made unless the person was a member of his family at the time of his death, and if Mr. DeRoller should cease to be a member of the family, insured should apply at once for a change of beneficiary. Thereafter the certificate was issued and delivered.
The parties had, therefore, a definite understanding at and before the issuance of the certificate, that as to them a member of the family was one of the household of which insured was the *53head, one living under the same roof, eating at the same table and being a part of the “ family circle; ” and that the beneficiary might by abandoning that relation become disqualified. The right of DeRoller to be a beneficiary could not arise except upon such express conditions, and could not continue after the conditions changed to disqualify him. The certificate, by-laws and application together constituted the contract (Callahan v. Switchmen’s Union of North America, 189 App. Div. 5.)
There is no doubt that the family relation was broken by the sale of the home, by the fact that the plaintiff having formed other family ties went with his wife to a distant city and established and maintained a home elsewhere than with the insured, who had also sought another home, and that the relationship as members of a family within the intent of the parties to the contract, had entirely ceased. Adroitness in piecing together favorable fragments of evidence into new findings cannot obscure the bald, outstanding fact that before the death of the insured, DeRoller and Bohan had definitely and permanently separated.
We must give that construction to the term “ member of the family of the member at the time of his death ” that the parties themselves gave it when the certificate was issued, and the construction that they themselves recognized and adopted as within the contemplation of the by-laws with which both were familiar. Sentimental considerations should not be urged to invalidate the contract. The by-laws are controlling and when the evidence is clear the contract made thereunder should be enforced, even though a beneficiary named by the insured loses the benefits it was hoped he would receive (Sweeney v. Modern Woodmen of America, 237 N. Y. 536); and where the beneficiary named is disqualified, the amount due under the certificate will be paid to those who under the by-laws have a legal claim. (Mendelson v. Gausman, 157 App. Div. 370; Dusenbury v. Grant Council, No. 128, 96 Misc. Rep. 665; Woodbury v. Schroeder, 116 id. 673.)
My conclusion is that the plaintiff prior to the death of the insured ceased to be a member of the family, and that under the by-laws of the insurer, the amount due on the certificate cannot legally be paid to him, and that the judgment should, therefore, be affirmed.