App. Div.] SECOND DEPARTMENT, JANUARY TERM, 1903. that of the plaintiff. This evidently refers to cases where the plaintiff or the court have the power to fix the venue or place of trial in the county designated, and the effect of the proviso is to restrict this right of designation to some county adjoining that of the defendant, other than that of the plaintiff. This clearly has no application to Justices' Courts, in which there is no such right of designation, but jurisdiction of the persons depends entirely upon the residence or presence of the parties not in the county, but in particular towns. This construction is not entirely unsustained by judicial authority. At common law an action of trespass for an injury to real estate was local, and could only be tried in the county where the real estate was situated. In Graves v. McKeon (2 Denio, 639) it was held that this rule had no application to Justices' Courts. That the action might be brought before a justice of another county, and, in case of a plea of title or an appeal, the Court of Common Pleas of the county where the action was brought would have jurisdiction." In La Rue v. Smith (153 N. Y. 428) the appeal was disposed of upon the merits as the "fairest way" under the circumstances, although Judge O'BRIEN considered that the title to real estate had not come in question, and the action could, therefore, be properly treated for all purposes as one originally commenced in the Supreme Court. The question of the general power of the Supreme Court in the premises is not considered, nor is the right to a change of the place of trial for the convenience of witnesses or for any other cause than that under consideration involved. All that is decided is that the effect of section 2953 is to require the "new action " to be brought at the plaintiff's election either in the Supreme Court or the County Court of the justice's county, and that when it is brought in the Supreme Court the defendant has no absolute right to the prosecution of the action, under the circumstances of this case, in the county where the real estate is situated. The order should be affirmed. GOODRICH, P. J., BARTLETT and WOODWARD, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. SECOND DEPARTMENT, JANUARY TERM, 1903. [Vol. 78. CATE BOTTJER, Respondent, v. SUPREME COUNCIL, AMERICAN LEGION OF HONOR, Appellant. Fraternal benefit insurance association—by-law adopted after the issue of a certifi cate held not to be authorized in respect thereto and not to be retroactive. A by-law of a fraternal benefit insurance association providing, "In case the member shall die by suicide, sane or insane, or by alcoholism, or by legal execution for crime, there shall only be due and payable to the beneficiary under the benefit certificate the then value of the certificate, to be ascertained on the basis of the proportion of time that the member had been in the order, as it varies to his life expectancy at the time of the member's admission, as fixed by the American expectation table," is not binding upon a person who became a member of the association prior to the enactment of the amendment and who assumed the obligation "to conform in all respects to the by-laws, rules and usages of the order now in force or which may hereafter be adopted by the order," for the reason that, with respect to such a member, the association had no power to enact the by-law, and for the further reason that such amendment was not retroactive in its operation. APPEAL by the defendant, Supreme Council, American Legion of Honor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of March, 1902, upon the verdict of a jury rendered by direction of the court. Henry A. Powell, Alfred J. Carr and Laurence G. Goodhart, for the appellant. James D. Bell, for the respondent. HIRSCHBERG, J.: The plaintiff sues as the beneficiary named in a benefit certificate issued by the defendant to her husband, which entitled her to the sum of $5,000 upon his death. Between the time of the issuing of the certificate and the death of her husband the defendant adopted an amendment to its by-laws, as follows: "In case the member shall die by suicide, sane or insane, or by alcoholism, or by legal execution for crime, there shall only be due and payable to the beneficiary under the benefit certificate the then value of the certificate, to be ascertained on the basis of the proportion of time that the member had been in the order, as it varies to his life expect App. Div.] SECOND DEPARTMENT, JANUARY TERM, 1903. ancy at the time of the member's admission, as fixed by the American expectation table." The deceased became a member in 1886, this amendment was adopted in 1899, and he died in 1900. The defendant claimed that he committed suicide, and on the motion of each party at the close of the case for the direction of a verdict, the court in directing a verdict for the plaintiff, wrote that two questions were presented, viz., the power of the defendant to make the by-law in question in so far as it tended to impair existing obligations, and the retroactive operation of the amendment. The decision was rested upon the want of power, and the opinion of the learned trial justice is here appended.* We agree with the con *The following is the opinion referred to: SPENCER, J.: Fred Bottjer, plaintiff's husband, on or about December 13, 1886, at the city of Brooklyn, N. Y., became a beneficial member of one of the subordinate councils of the defendant, a fraternal association organized under the laws of the State of Massachusetts for the purpose, among other things, as stated in its constitution: (4) To establish a Fund for the relief of sick and distressed beneficial members." (5) "To establish a Benefit Fund, from which, on the satisfactory evidence of the death of a beneficial member of the order who has complied with all its lawful requirements, a sum not exceeding Five thousand dollars shall be paid to the family, orphans or dependents as the member may direct." Among the obligations assumed by the plaintiff's husband on becoming a member is the following: "I agree to make punctual payment of all dues and assessments for which I may become liable and to conform in all respects to the laws, rules and usages of the order now in force or which may hereafter be adopted by the same." In due course the defendant issued to said Bottjer and to the plaintiff a certificate providing, among other things, as follows: "This is to certify that Fred Bottjer is a Companion of the American Legion of Honor. * * * In consideration of the full compliance with all the by-laws of the Supreme Council A. L. of H. now existing or hereafter adopted and the conditions herein contained, the Supreme Council A. L. of H. hereby agrees to pay Cate Bottjer, wife, Five thousand dollars upon satisfactory proof of the death while in good standing upon the books of the Supreme Council, of the Companion herein named." Fred Bottjer died May 31, 1900, while in good standing in the order, and the plaintiff, his widow, brings this action to recover the amount named in the certificate. The defendant resists on the ground that Bottjer committed suicide, and that by virtue of the by-laws of the defendant now in force the beneficiaries of members so dying may recover only a certain specified proportion of the amount named in their certificates. SECOND DEPARTMENT, JANUARY TERM, 1903. [Vol. 78. clusion reached upon the question discussed. The recent case of Weber v. Supreme Tent of K. of M. (172 N. Y. 490) may be noted in that connection. We are also of opinion that the amendment was not retroactive. It is conceded that at the time Bottjer became a member of the defendant order no such by-law was in existence, but the defendant has alleged and proven that in October, 1899, the supreme council located in Boston, Mass., under the power reserved to it in the constitution to alter or amend the laws governing the benefit fund, adopted a new by-law, which, among other things, provides as follows: In case the member shall die by suicide, sane or insane, or by alcoholism, or by legal execution for crime, there shall only be due and payable to the beneficiary under the benefit certificate the then value of the certificate to be ascertained on the basis of the proportion of time that the member had been in the order as it varies to his life expectancy at the time of the member's admission as fixed by the American expectation table." The questions thus presented to this court are: First, whether the foregoing by-law was retroactive in its operations; and, second, whether the defendant had the power by such legislation to impair pre-existing obligations. Both of these questions are involved in serious difficulty, and while I am inclined to the opinion that the by-law under consideration is not retroactive, I prefer to rest the decision of this case upon the want of power in the defendant. It is clear, I think, from the decisions in this State that under a contract, such at this, there is some limitation to the powers of the defendant to affect by legislation the rights of its members and of the beneficiaries named in their membership certificates. It may be difficult to define the line of limitation, but that such a line exists is, I think, clearly indicated. * * * * * * Thus in Kent v. Quicksilver Mining Co. (78 N. Y. 159, 182) the Court of Appeals says: All by-laws must be reasonable and consistent with the general principles of the laws of the land, which are to be determined by the courts, when a case is properly before them. A by-law may regulate or modify the constitution of a corporation, but cannot alter it. The alteration of a by-law is but the making of another upon the same matter. If the first must be reasonable and in accord with principles of law, so must that which alters it. If then the power is reserved to alter, amend or repeal, and that reservation enters into a contract, the power reserved is to pass reasonable by-laws, agreeable to law. But a by-law that will disturb a vested right is not such. * * * And it differs not when the power to make and alter by-laws is expressly given to a majority of the stockholders, and that the obnoxious ordinance is passed in due form." In Poultney v. Bachman (31 Hun, 49) the plaintiff became a member of the defendant society in 1849, at a time when its by-laws provided that sick members should receive a benefit of four dollars per week. In 1875 the plaintiff was taken sick and received such benefit until July, 1879, when the by-laws were amended reducing such benefit to one dollar a week to such members as had App. Div.] SECOND DEPARTMENT, JANUARY TERM, 1903. It certainly is not so in express terms, there being no statement to the effect that the by-law as amended was to apply to the benefit certificates issued and outstanding at the time of the adoption of the amendment. The general rule is that all enactments are to be conbeen sick for twelve months. The plaintiff disputed the right of the defendant order to make the change, and brought suit for the larger amount; and it was held that the society had the legal right to make the change. Also in Hutchinson v. Supreme Tent, etc. (68 Hun, 355; 22 N. Y. Supp. 801), the plaintiff became a member of the defendant order under an agreement similar to the one here. The constitution of the defendant at that time provided that upon the permanent disability of a member he should receive an advance benefit of one-half of the amount named in his certificate; and it was held that the society had the right to amend the constitution by reducing such advance benefit to onetenth part of the amount named in the certificate. In Roberts v. Cohen (60 App. Div. 259) the deceased became a member of the defendant society in 1890. He was unmarried, and in his application directed that upon his death $1,000 of the benefit fund should be paid to his daughter and $1,000 to Lily Cohen, a friend. In 1894 he married the plaintiff, who continued to be his wife until his death in 1899. In March, 1898, a new by law was adopted as follows: "Each member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall in every instance be one or more members of his family, an affianced wife, or some one related to him by blood, or who shall be dependent upon him." It also provided that in case a member died without naming a beneficiary, his widow should take the fund. The deceased was notified of the change, and that his beneficiary, Lily Cohen, did not come within the new regulations, and he was asked to make a redesignation, which he never did. In determining what effect, if any, this amendment had upon the rights of Lily Cohen, the court made use of the following language: "He had the right at the time to designate as appointee the defendant Lily Cohen, and we fail to see how, without the consent of the member, this contract, which was valid at its inception, could be impaired or destroyed either by the Legislature or the society. The by-laws of a society must be fair and equitable and consistent with its charter. Whether, under a right reserved to alter them, a society can impair or destroy a contract valid when made, is open to question. * * A member having the right could * * * * change the beneficiary, but his failure to exercise such privilege, whether from disinclination or neglect, did not give the society the right to make another designation without his consent, unless such right was expressly conferred upon the society." In Shipman v. Protected Home Circle (66 App. Div. 448) the court at Trial Term, in speaking of the reservation of power of the defendant order to affect the rights of its members by subsequently enacted by-laws, says: "It may well be suggested that this reservation to amend its by-laws, with reference to which the member promised to comply, referred to other matters ordinarily incident to the management of such associations, and not to such a vital matter as impaired |