Action to recover from a mutual benefit insurance corporation an amount claimed to be due under its by-laws for “sick benefits.”
The sole question presented by the appeal is whether the defendant had the power to amend its by-laws in such a way as to reduce a sick benefit to which the plaintiff would otherwise have been entitled. The defendant’s certificate of incorporation provided that its purpose was to collect funds from members and apply them to their relief in case of death, sickness or other casualty “ as may hereafter be regulated by the by-laws.” The plaintiff became a member in 1883, has since paid his dues and been in good standing. When he joined the association he signed a statement to the effect that he would be “guided” by the by-laws then in existence or thereafter adopted. At that time the by-laws provided that a member should receive “in case of sickness, the services of a doctor, medicine and sick benefit of seven dollars per week for a period not exceeding thirteen weeks within the period of fifteen months; and at the rate of three dollars and fifty cents per week for an additional thirteen weeks during such period of fifteen months.”
“ In the event a member’s sickness is then declared incurable by the physician of the Society, such member shall receive the sum of three dollars and fifty cents per week for twelve successive months; providing the sick member shall not be able to do any light work or business and shall thereupon be entitled to no further sick benefits * *
This by-law was amended in March, 1902, by striking out the last paragraph relating to incurable members. The effect of the amendment was to allow incurable members the same sick benefits to which they would be entitled in case their illness had only been temporary, that is, seven dollars a week for thirteen weeks and three dollars and fifty cents a week for another thirteen weeks in each recurring period of fifteen months. In 1904, while the by-laws were in force as thus amended, the plaintiff became and has since remained incurably sick and unable ,to work. On September 18, 1905, the by-laws were further amended by providing that “No member shall *144receive more than five hundred dollars sick benefit during his term of membership.”
The question presented is whether the limitation of $500 to which the plaintiff never consented, though he had due notice of the meeting at which it was adopted, applies to him. If it does, then he has received all he is entitled to, because he received more than $500 prior, and also moire than $500 since the amendment. He has not, however, received within the period of fifteen months immediately preceding the commencement of this action, SI a week for thirteen weeks and $3.50 a week for another thirteen weeks, as provided by the by-laws under the amendment of 1902, and which was in force when he became incurably ill. He had a recovery in the Municipal Court of the city of New York for $56, and on appeal to - the Appellate Term the same was affirmed, and by permission defendant appeals from such determination to this court.
The law now seems to be well settled that a mutual benefit association cannot, by an amendment of its by-laws, decrease the benefits which it has contracted to give or furnish to its members when they became such, even though a general power to amend is expressly reserved. (Wright v. Knights of Maccabees, 196 N. Y. 391; Dowdall v. Catholic Mut. Benefit Assn., Id. 405; Shipman v. Protected Home Circle, 174 id. 398.)
Here no certificate of membership was issued, and the contract between the parties was embodied in the charter of the corporation and the by-laws as they existed when plaintiff became a member. (Hellenberg v. District No. One of I. O. of B. B., 94 N. Y. 580; Bishop v. G. L. E. O. of M. A., 112 id. 621.) The charter provides that the funds are to be applied “ as may hereafter be regulated by the by-laws,” and when the plaintiff became a member the by-laws then in force fixed his rights. His agreement to be “guided” by the by-laws which might thereafter be adopted had reference to matters of administration, and not to his rights which were then fixed and vested. (Beach v. Supreme Tent K. of M., 177 N. Y. 100; Evans v. Southern Tier Masonic Relief Assn., 182 id. 453.)
This view is not supported by, but is somewhat in conflict with, Berg v. Badenser Understuetzungs Verein (90 App. Div. 414). In that case, as in the present, there had apparently been *145no certificate of membership issued, and after the plaintiff became a member the association amended its constitution so as to decrease the sick benefits, the decrease being reasonable in view of the financial condition of the association. The amendment was held valid, in view of the financial condition of the association, even though it did not appear that any right to so amend had been specifically reserved. The decision in that case was cited with approval in Lewin v. Koerner Benevolent Association (125 App. Div. 91). But in the more recent cases of Wright v. Knights of Maccabees (supra) and Dowdall v. Catholic Mut. Benefit Assn. (supra), the Court of Appeals held, reversing two of the decisions relied upon in Lewin v. Koerner Benevolent Association (supra), that the by-laws could not be amended so as to deprive one of benefits accorded to him at the time he became a member, and this irrespective of the financial condition of the association, unless there were a specific reservation to the effect that such amendments might be made.
In the Wright case the rule laid down in Ayers v. Order of United Workmen (188 N. Y. 280) is quoted with approval. It is: “An amendment of by-laws which form part of a contract is an amendment of the contract itself and when such a power is reserved in general terms the (parties do not mean, as the courts hold, that the contract is subject to change in any essential particular at the election of the one in whose favor the reservation is made. It would be not reasonable and hence not within their contemplation, at least in the absence of stipulations clearly specifying the subjects to be affected, that one party should have the right to make a radical change in the contract, or one that would reduce its pecuniary value to the other. A contract which authorizes one party to change .it in.any respect that he chooses would in effect be binding upon the other party only and would leave him at the mercy of the former, and we have said that human language is not strong enough to place a person in that situation.”
The amendment of 1905 did not, it is true, as pointed out by the defendant’s counsel, deprive the plaintiff of any benefits which he would have been entitled to receive under the by-laws as they existed when he became a member. Under such *146by-laws he would have been entitled, by reason of incurable illness, to at most $7 a week, for thirteen weeks; $3.50 per week for an additional thirteen weeks, and $3.50 a week for twelve months thereafter, making in all $318.50, and he has already received largely in excess of that. But the amendment of 1905, however, did deprive him of benefits to which he was entitled under the amendment of 1902, which was in effect at the time he became incurably ill. The benefit to which he became entitled when he became incurably ill, under the by-laws then in force, could not thereafter be decreased by amendment. His rights had at that time become fixed and it did not he with the defendant to deprive him of them without his consent. Under such by-laws he was entitled to receive $136.50 during each recurring period of fifteen months. This he was deprived of by the amendment of 1905 limiting the total amount which he was entitled to receive to ■ $500.
It seems to me the same rule should be applied to the 1902 amendment that would be applicable to the by-laws as existing when he became a member of the association. The amendment of 1902 was assented to by the plaintiff. He paid his dues as provided therein and accepted the benefits to which he was entitled thereunder. This was, in effect, an amendment to the original contract. (Ayers v. Order of United Workmen, supra.) He did not consent to the amendment of 1905 and the fact that the association thereafter paid him for a certain period more than he would have been entitled to under the amendment of 1902 cannot be tortured into a consent on his part that the amendment of 1905 might be made.
He could not be deprived of the rights accorded to him under the orignal contract, without his consent, and I am unable to see, for the same reason, how he can be deprived of. the rights given to him under the amendment of 1902, which was in effect at the time when he became incurably ill.
The determination of. the Appellate Term is, therefore, affirmed, with costs.
Laughlin, J., concurred.
Determination and judgment reversed and new trial ordered; with costs in all courts to appellant to abide event.