Opinion of the Court, per VANN, J.

[Vol. 196.

of the certificate. Hence the right to pay at the old rate was one of the rights provided for and that he contracted for. It was a vested right, immune from change by amendment, in the absence of a specific reservation of power to amend in that particular. On the average, such contracts would be impaired by doubling assessments to the same extent as by cutting off one-half of the benefit. The price to be paid by the plaintiff for insurance is as essential a part of his contract as the amount of insurance to be paid to him by the defendant on the maturity of the policy. Whether the one is increased or the other proportionately decreased makes no difference in principle, or in the final result. By either method the pecuniary value of the contract, which is property, would be reduced one-half.

The defendant seeks to sustain its action in increasing the rate of assessment, by invoking the general power to amend and pleading that the exercise thereof was essential to its existence. The court did not find, as matter of fact or law, that a reduction of benefits was necessary, nor did it find as a fact that an increase in the rate of assessments was necessary, but found that "the increase in the rate, or the number of assessments, was necessary for the continued existence of the defendant." Necessity bears only on the question whether the amendments are reasonable. While they were desirable as a matter of policy, they were not necessary, for the old bylaws gave the defendants power to raise all the money needed for every purpose by simply increasing the number of assessments. It is true that a great increase in this respect might reduce the membership, still that did not make an increase in the rate of assessments necessary, for it cannot be necessary for a corporation to violate its contract in order to preserve its existence. (Vought v. Eastern B. & L. Association, 172 N. Y. 508, 518.) Moreover, the existence of the defendant, according to the findings, is not now threatened, nor will it be until after the lapse of from eighteen to twenty-five years, and no one can foresee the changes that will take place in the mean time. If the wonderful growth of the defendant, as stated by

its counsel, continues, the danger now apprehended as to what may take place a quarter of a century hence, may wholly disappear before that period expires.

I think that an increase in the rate of assessment falls under the same condemnation of the law as a reduction in the amount of benefits. A judgment requiring the defendant to perform according to the contract as made and not as amended, yet requiring the plaintiff to pay according to the contract as amended and not as made, would contain inconsistent provisions, one of which would necessarily violate the principle upon which the other was founded.

The judgment should be reversed and a new trial granted, with costs to abide event.

CULLEN, Ch. J., GRAY, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur. Judgment reversed, etc.

MICHAEL DOWDALL, Appellant, v. SUPREME COUNCIL OF THE CATHOLIC MUTUAL BENEFIT ASSOCIATION, Respondent.

Insurance (life) — mutual benefit associations association cannot change constitutional provision that beneficiary shall be assessed according to age when admitted, without his consent.

The defendant, a mutual benefit life insurance association, issued to plaintiff a certificate of membership therein, upon the condition that he should "in every particular while a member of said association comply with all the laws, rules and requirements thereof." Plaintiff also received a printed book containing the constitution and by-laws of defendant. One of the articles of the constitution provided in substance that all members should be assessed according to their age when admitted. The question presented is whether, by subsequent amendment of the constitution or any of the rules or regulations made after the issue of the certificate, defendant may increase the rate of a single assessment against plaintiff. Held, that the covenant on the part of plaintiff that he would comply with all the laws, rules and requirements of the association refers only to such as existed at the time he entered into his contract, and that any changes or alterations thereafter made therein, or additions thereto, seeking to modify or alter said contract do not bind him.

Dowdall v. Catholic Mut. Benefit Assn., 123 App. Div. 913, reversed.

(Argued October 22, 1909; decided November 23, 1909.)

APPEAL from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 8, 1908, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion.

W. J. Shields and Clarence U. Carruth for appellant. The contract existing for twenty-five years between the plaintiff and the defendant consists of the certificate of insurance. and the constitution and by-laws in force at the time the same was issued and delivered to him, the terms and conditions of which contract of insurance are exceedingly clear and definite. (Bowles v. M. R. Assn., 220 Ill. 400; Black v. D. R. C. Co., 24 N. J. Eq. 455, 474; Fox v. I. II. Co., 41 App. Div. 145; Wood v. Sheehan, 68 N. Y. 368; Sattler v. Hallock, 160 N. Y. 297; Vought v. E. B. & L. Assn., 172 N. Y. 515.) Plaintiff never directly or indirectly consented to any change or alteration of his contract of insurance with the defendant, and the defendant never reserved any right and possessed no power or authority to impair or strike down plaintiff's contract and destroy his vested rights. (U. S. v. Kirby, 7 Wall. 482; Wist v. Grand Lodge A. O. U. W., 22 Ore. 271; Hobes v. Association, 82 Iowa, 107; Sieverts v. Benefit Assn., 95 Iowa, 710; Van Atten v. Modern Brotherhood, 131 Iowa, 232; Strauss v. Mutual, etc., Assn., 126 N. C. 971; Bragan v. Knights, 128 N. C. 354; Jones v. Casualty Co., 140 N. C. 265; Hadley v. A. O. U. W. Lodge, 1 Tenn. Ch. 413, 430; Eberts v. M. R. F. L. Assn., 81 Minn. 116.)

J. T. Keena and Daniel J. Kenefick for respondent. The amended by-law increasing the rates of assessment which was adopted in good faith and which was obviously necessary to perpetuate the life of the association violated no vested contractual right of the plaintiff and the contrary conclusion reached by the learned trial court. (Reynolds v. Royal

N. Y. Rep.] Opinion of the Court, per EDWARD T. BARTLETT, J.

Arcanum, 78 N. E. Rep. 129; Durfee v. O. C. R. Co., 5 Allen, 230; Pain v. Society St. Jean Baptiste, 172 Mass. 310; Speleman v. Supreme Council, 157 Mass. 128; Wright v. M. M. L. Ins. Co., 193 U. S. 657; Knights of Pythias V. Knight, 117 Ind. 489; Bacon on Ben. Societies [3d ed.], gg 185, 186; Crosby v. M. R. F. L. Assn., 38 Misc. Rep. 708.)

EDWARD T. BARTLETT, J. The defendant was incorporated on the 9th day of June, 1879, under chapter 496 of the laws of that year, entitled "An act to incorporate the Supreme Council of the Catholic Mutual Benefit Association." On the 9th day of July, 1879, a branch of the defendant was organized at Avon, New York.

The plaintiff became a member of the defendant on or about July 9th, 1879, and was thereafter assessed at the rate of $1.10 for each assessment until January 1st, 1904. When he became a member of the defendant the number of assessments that could be made was unlimited. Since January 1st, 1904, the plaintiff has been assessed at the rate of $5.56 for each assessment.

It was admitted on the trial, which took place on the 12th day of June, 1906, that the plaintiff was seventy-four years of age on the 20th day of June, 1905, and that he had paid his dues or assessments up to the date of the trial.

When the plaintiff became a member of the defendant there was issued to him a certificate which stated, in substance, that he was to participate, in case of death, in the amount of two thousand dollars in the beneficiary fund. It also contained the following provision: "This certificate is issued upon the express condition that the said Michael Dowdall shall, in every particular while a member of said association, comply with all the laws, rules and requirements thereof."

On July 2nd, 1883, the defendant issued and delivered to the plaintiff the certificate of membership contained in the findings and which he now holds. It was conceded on the argument that this certificate was precisely like the original, except a slight verbal change as to the name of the council

Opinion of the Court, per EDWARD T. BARTLETT, J. [Vol. 196. issuing the same; the first certificate was headed "Grand Council," the second "Supreme Council."

The single question is now presented whether by amendment of the constitution, or any of the rules or regulations, made after the plaintiff had entered into his contract of insurance, it is possible for the defendant to change the rate of a single assessment from $1.10 to $5.56. The trial judge was of opinion that no such change could be made under a fair construction of the contract entered into by the parties. and decided in favor of the plaintiff. The learned Appellate Division reversed the judgment entered upon this decision, writing no opinion, but stated in the order of reversal that it was upon the authority of Mock v. Supreme Council of the Royal Arcanum (121 App. Div. 474) and Wright v. Knights of the Maccabees of the World (122 App. Div. 904.)

There is a conflict of judicial decisions in the various states on the point now presented, but a careful examination of the cases shows that the great weight of authority is in favor of the position that the original contract cannot be impaired. It would be quite impossible to harmonize the conflicting views of the learned judges, and it remains to be considered whether the decisions of this court have not laid down the rule of law which must now govern, to the effect that the contract of insurance cannot be changed by any act of the defendant.

We have on the one hand the plaintiff standing upon the plain letter and spirit of his contract, and on the other the insistence of the defendant that unless, under its construction. of the contract, it is vested with the power to increase the amount of a single assessment, as the exigencies of the company may require, it will be unable to continue its financial life and pay its death losses.

The precise question now presented may be thus stated: The plaintiff received from the defendant a certificate insuring his life for two thousand dollars, which contained a single covenant, as follows: "This certificate is issued upon the express condition that the said Michael Dowdall shall, in every