Summary
In Fitzgerald v. Boyle, 57 Utah 234, 193 P. 1109, 1111, which is cited by appellant in support of the proposition that an option unsupported by consideration is nothing more than a continuing offer, the court stated: "It is also a well-established doctrine that one and the same person may enjoy the privilege of purchasing, and at the same time have the right of selling on commission either personal or real property. * * *"
Summary of this case from Pittsburgh Equitable Meter v. Paul C. LoeberOpinion
November 3, 1911.
John Ewen, for the appellant.
Adolphus D. Pape, for the respondent.
The action was originally brought against Andrew J. Lyle, as treasurer of the Brooklyn Police Endowment Fund Association, on a beneficiary certificate issued on the 1st day of February, 1907, to Robert J. Fitzgerald, since deceased, but then a member of the police department of the city of New York, who on the 25th day of January, 1907, executed a certificate in writing designating the plaintiff, his sister, as the beneficiary to receive all benefits due to him as a member of the Brooklyn Police Endowment Fund Association, in the event of his death while a member of said association. The original defendant made a motion for leave to pay the fund into court, and to interplead the appellant as defendant in its stead. The motion was granted and the money was thereafter paid into court.
The certificate issued by the association does not name the beneficiary. It merely certifies that the decedent was a member of the association and entitled to the benefits provided in the by-laws thereof upon the surrender of the certificate "in the event of his resignation, death, retirement or dismissal from the Brooklyn Police Force." The decedent was killed while a member of said association, in good standing, and while in the discharge of duty as a member of the police department on the 10th day of January, 1908, having been a member of said association for only about eleven months. The appellant is the widow of the decedent, and she claims the fund in that right. At the time the decedent became a member of said association its by-laws provided in effect that it should not be liable to pay a beneficiary fund unless the member, at the time of his death, retirement, resignation or dismissal from the department, shall have been a member of the association for eighteen months; and if the provisions of the by-laws had remained the same at the time of the member's death it is quite clear that plaintiff would have no standing to assert a claim against the association. The by-laws of the association, at the time the decedent joined it, provided that where a beneficiary fund was payable it should be collected from the members of the association by a per capita assessment, and that it should be paid "to the member for whom the collection was made, or the person designated to receive the same, taking his receipt therefor, when his membership and connection with the association shall be terminated forever." It was provided that on the resignation, dismissal or retirement of the member from the police force, he should return his certificate of membership indorsed by the treasurer to whom he paid the last contribution, "or execute the proper power of attorney, with the certificate of membership attached," and likewise so indorsed, "authorizing the payment of the endowment to the person designated therein;" and further provided in the paragraph following these provisions that "In the event of the death of a member the president shall pay the same to his widow, next of kin or person designated to receive the same, upon returning the certificate indorsed as above." The by-laws, so far as introduced in evidence, did not require that the member designate a beneficiary, and it is conceded that there was no provision of the by-laws with respect thereto, other than those introduced in evidence. It is evident that the by-laws contemplated that in the event that the beneficiary fund became payable otherwise than by the death of the member, it should be paid to him or to some one designated by him by an indorsement in or on the certificate which was to be returned before the association would be obliged to make an assessment to raise the fund.
In January, 1908, the by-laws were amended by inserting after the provisions of the by-law limiting the liability of the association to cases in which the member remained a member for eighteen months, the following provisions, to wit: "Also any member of the police department who is a member of this association in good standing for one month or over and killed in the discharge of his duty, his beneficiary may receive the benefits provided for in this article the same as if he had been a member of this association for eighteen months or over. But no one shall receive such benefits only wife, child, father or mother, and the president of this association, upon receiving notice of such death, shall appoint a committee of not less than three delegates of this association to investigate such death and the circumstances of such family and see if they are dependent on him for a living. Upon above committee's report claim shall be paid or not paid."
It will be observed that this amendment conferred no right on the plaintiff as against the association. It is, however, claimed by the plaintiff that since the association saw fit to voluntarily pay the beneficiary fund, she is entitled thereto as against the appellant. We do not agree with this contention. The phraseology of the amendment to the by-law indicates quite clearly that the association intended thereby to make provision for a wife, child, father or mother of a deceased member who died after being a member of the association in good standing for one month or more, and who was killed in the discharge of his duty before he had been a member for eighteen months. It being conceded that the designation of a beneficiary was not compulsory, it is manifest from the provisions of the by-laws herein quoted, which it is conceded are the only material provisions upon which the question depends, that if the member failed to designate a beneficiary and he left a widow she would take the beneficiary fund. The word "beneficiary," therefore, as used in the amendment to the by-law, must be construed as embracing not only a beneficiary designated by certificate, as was the plaintiff, but also a beneficiary specified in the by-laws. It cannot be successfully maintained, therefore, that a wife, as such, who is not designated by certificate of the member as a beneficiary, has no right in any event. There exists, by virtue of the provisions of the by-laws and of her position as wife of a member, a contract obligation on the part of the association to pay to her any beneficiary fund which it is liable to pay on account of the death of the member, in the event, at least — and it is not necessary to decide whether or not she would have any right as against a beneficiary designated by certificate who would otherwise be entitled to take as against the association — that he has designated no other beneficiary; and we think it equally clear that the right is conferred upon her, by the amendment to the by-laws, to receive any beneficiary fund which the association sees fit to pay in the event of the death of the member after being a member for one month and less than eighteen months. The purpose of the amendment evidently was to provide for a dependent wife or relative of the class specified, and to that end it was provided that the circumstances of such wife or relative should be inquired into by a committee of the association, and that the claim should be paid or declined according to the report of such committee. It is immaterial to inquire here whether the association investigated the financial circumstances of the appellant or waived its right so to do. That was a matter which concerned the association and its members only, and if it saw fit to waive those provisions and its members acquiesced therein, it is no concern of the plaintiff's.
The action of the association in paying the money into court is not an admission of willingness upon its part to pay the money to plaintiff or a recognition of her claim, and has no material bearing upon the point to be decided, for the association was under no obligation to defend the right of the defendant, appellant. Such action merely indicates that the association was willing to pay the beneficiary fund, under the amended by-law, to the person entitled to receive the same, as on a voluntary payment thereof by the association on account of the death of a member who had been such more than one month and less than eighteen months. The plaintiff, being neither the wife nor the child, nor the father, nor the mother of the decedent, was precluded from taking the fund, and the situation was precisely the same as if there had been no designation of a beneficiary as to this fund, in which event it is conceded the wife would be entitled to take it.
It follows, therefore, that the judgment should be reversed, with costs to appellant, and as the material facts are not controverted and cannot be changed upon a new trial, judgment is ordered for the defendant, with costs.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and MILLER, JJ., concurred.
Judgment reversed, with costs, and judgment ordered for the defendant, with costs. Order to be settled on notice.