By the original application of the deceased, he directed the benefits to be paid to Henry L. Gladding, his brother. By an indorsement on the back of the certificate, signed by the secretary of the company, dated October 15, 1886, and stated therein to be at the written request of the member, George W. Gladding, the beneficiary was changed to Alice S. Glad-ding, his wife. Although such written request was not produced on the trial, still this indorsement made on the certificate, which must then have been in thepossession of George W., is sufficient evidence that from that time forward the benefits were to be paid to Alice S., unless some subsequent legal change should be made. The recital in this indorsement is sufficient evidence of a proper written request. The indorsement was upon the certificate itself; and that was a paper belonging to George W., and originally in his possession. Unless the beneficiary originally named had some vested rights, it would seem, on general principles, that the parties to the agreement might modify it by mutual consent.
Section 12 of the laws and regulations requires the payment to be made to wife, children, father, mother, sister, or brother of the deceased member, in the order above named, unless otherwise ordered, in writing, by the deceased member; such order to be signed in presence of two witnesses. Chapter 175, Laws 1883, by its fifth section makes all companies like the one here in question subject only to the provisions of the act, and describes such companies as “ engaged in the business of life insurance on the co-operative or assessment plan.” Section 18 of the act says that membership in any association transacting such business shall give the member the right, with the consent of the corporation, to change his beneficiary. The question, then, must be, did the deceased make a valid change of his beneficiary? On the 20th of May, 1887, he signed a paper directing “the association,” not naming any, to pay the amount of benefits to his brother Henry L. This he acknowledged on the same day before a commissioner of deeds. There is no witness to the paper. This paper was never brought to the notice of the association until after the death of George W. Such is the finding of the court on a conflict of evidence. Of course, therefore, there was no consent of the association to the proposed change. In the case of Hannigan v. Ingraham, ante, 232, (recently decided in this court,) there was no beneficiary named, and no restriction upon the assigning of the benefit. But the present case is different. There is a beneficiary agreed upon between the assured and the association, and there is a restriction upon the assigning of the benefit. The assured, then, did not make a valid transfer of the benefit. It is urged that at the time of the attempted transfer the certificate was in the possession of Alice S., and-therefore an indorsement could not be made thereon. But it would have been possible for the association to consent to the transfer, if it had chosen to do so, before the death of George W. The plaintiff urges that the secretary of the association testified that he would have consented if the original eertifi *882cate had been produced. But his testimony as to what he would have done under other circumstances does not show that the association did consent. It was certainly prudent to decline to consent unless the original certificate should be produced, so that the change could be stated thereon. There was, then, no change of ttie beneficiary made with the consent of the association; and the association was not, under this contract, liable to one who was not substituted as beneficiary with its consent.
We do not think it necessary to decide whether or not Henry L. was within the class of persons who might be beneficiaries. Nor is it important to consider the fact that, during some part of their married life, the deceased and Alice S. lived apart. Of the grounds of the separation we know nothing, nor would they be material. For about a year prior to his death they were 11 ving together, and they were so living when he was taken ill of his last sickness. That they were not together at his death was owing to the fact that Henry L. had taken to his own house the deceased at the beginning of his illness, and had prevented the wife from seeing him there. An attempted substitution of the brother as beneficiary, under these circumstances, does not commend itself to any special favor. We think that the view of the law stated in Story v. Association, 95 N. Y. 474, and in Ireland v. Ireland, 42 Hun, 212, and other cases cited by counsel, sustain the views of the learned justice who tried th"e case; and we have seen nothing which, as we think, militates against them. In the latter case it was held, and correctly, that, on a controversy between two claimants, the question was, to which of the two the association was legally liable. If the consent of the association was needed to give Henry L. the right to recover against it, then Alice S. may show that want of consent in this controversy. The case of Luhrs v. Lodge, 7 N. Y. Supp. 487, is not in conflict with this. Judgment should be affirmed, with costs.