Tierney v. Perkins

H. T. Kellogg, J.:

In August,. 1894, Mary E. Tierney became a member of the Cigar Makers’ International Union of America, of which the defendant in this action is now the president. Her dues to the association were regularly paid until December 16, 1914, when she died. She had then been continuously a member of the association in good standing for more than twenty years. It was provided by the constitution of the association that in case of the death of a member with a membership of fifteen consecutive years to her credit, the association would pay $50 for funeral expenses and $500 as a death benefit. At the time that Mary E. .Tierney became a member of the association, and for many years thereafter, the death benefit was payable under the constitution to such persons as might be designated by the member. It was also provided therein that “ in case any member shall fail to so designate, by will or otherwise, to whom said sum shall be paid, the sums above mentioned shall be paid to the heirs at law.” In the year 1912 the constitution was amended to. provide that if the member made no designation “ 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 or 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.” Mary E. Tierney never made a designation of a beneficiary. This action to recover the death benefit for her death was brought by the husband of Mary E. Tierney, who originally claimed to be entitled thereto as a dependent relative under the amendment to the constitution thus passed in the year 1912. It was held by this court in 178 Appellate Division, 391, that the husband was not a dependent relative, and a judgment in his favor was accordingly reversed. The husband thereafter procured an order amending his complaint, so that he now appears as a plaintiff in this action both individually and as administrator of the estate of his wife, claiming a right of recovery on behalf of “ the heirs at law ” of Mary E. Tierney under the provisions of the constitution as they existed prior to the amendment. Since it has been decided that he has no standing as a dependent relative, it follows that in order now to Succeed he must establish that the amendment of 1912 was illegal because unreasonable in character, so that the constitution in its original form still governs. It will be observed that the only alteration made in the constitution related to the class of persons who would take in the event that a member failed to make a designation. As the power of selection of a desired beneficiary by Mary E. Tierney was not in the least affected by the amendment, we think it self-evident that the amendment was reasonable, and that neither she nor any other person was deprived of a vested right thereby. The cases of Orossmayer v. District No. 1, Benai Berith (70 App. Div. 90) and O’Brien v. Supreme Council (81 id. 1) fully sustain this view. It is, therefore, unnecessary to consider the question raised whether the amendment to the complaint was properly granted, and the further question whether the present plaintiff represents the “ heirs at law ” who were made beneficiaries by the original constitution, for the plaintiff must otherwise fail in the action in so far as he seeks herein a recovery of the death benefit.

The judgment of the County Court is reversed, with costs; and the judgment of the City Court reinstated.

All concur, except Kilby, J., dissenting,. with a memorandum; John M. Kellogg, P. J., dissents on the ground stated in his opinion in the former appeal (178 App. Div. 391, 395).