Berger v. Independent Bros. of Nieshwis

Appellate Terms of the Supreme Court of New York

Berger v. Independent Bros. of Nieshwis

147 N.Y.S. 934

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 3, 1914

StatusPublished

This text of 147 N.Y.S. 934 (Berger v. Independent Bros. of Nieshwis) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berger v. Independent Bros. of Nieshwis, 147 N.Y.S. 934 (N.Y. Ct. App. 1914).

Pincite

Opinion

GUY, J.

Plaintiff appeals from a judgment in her favor on the ground of insufficiency. The action is brought to recover the endowment due upon the death of a member of defendant society to his wife or heirs. The by-law of the defendant society-provides as follows:

“When a good standing brother’s wife dies, then the brother gets $100 endowment, * * * and the brother can receive no further endowment for the wife. When a good standing brother dies, the heirs get $300 endowment. When a deceased member leaves a second wife, or no wife at all, then the heirs get $200 endowment.”

It app'ears from the evidence that plaintiff was married to the member in question prior to his becoming a member of defendant society, and that he had previously been married; his first wife having died before he became such member. The learned trial justice held that under the last clause of the by-law only $200 endowment was due, because of the fact that the plaintiff was the second wife of the deceased member. This construction of the by-law is clearly erroneous. The purpose and intent of the provision as to wives is to prevent the payment of more than $100 on account of a wife—in other words, that the total endowment should, under no circumstances, exceed the sum of $300; that in the event of a member having no wife, the $300 should go to the heirs; that in the event of his having had one wife, who died, and on account of whose death he has received $100, there shall be no further payment, but simply the payment of $200 to the heirs. In other words, the terms “first wife” and “second wife” relate to the matrimonial condition of the member after assuming membership, and are not intended to penalize him and reduce the endowment which his heirs shall receive because, prior to his becoming a member of the society, he happened to have other matrimonial experiences.

The judgment must therefore be modified, by increasing the amount thereof to $300 and costs, and, as so modified, affirmed, with costs. All concur.

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GUY, J.

Plaintiff appeals from a judgment in her favor on the ground of insufficiency. The action is brought to recover the endowment due upon the death of a member of defendant society to his wife or heirs. The by-law of the defendant society-provides as follows:

“When a good standing brother’s wife dies, then the brother gets $100 endowment, * * * and the brother can receive no further endowment for the wife. When a good standing brother dies, the heirs get $300 endowment. When a deceased member leaves a second wife, or no wife at all, then the heirs get $200 endowment.”

It app'ears from the evidence that plaintiff was married to the member in question prior to his becoming a member of defendant society, and that he had previously been married; his first wife having died before he became such member. The learned trial justice held that under the last clause of the by-law only $200 endowment was due, because of the fact that the plaintiff was the second wife of the deceased member. This construction of the by-law is clearly erroneous. The purpose and intent of the provision as to wives is to prevent the payment of more than $100 on account of a wife—in other words, that the total endowment should, under no circumstances, exceed the sum of $300; that in the event of a member having no wife, the $300 should go to the heirs; that in the event of his having had one wife, who died, and on account of whose death he has received $100, there shall be no further payment, but simply the payment of $200 to the heirs. In other words, the terms “first wife” and “second wife” relate to the matrimonial condition of the member after assuming membership, and are not intended to penalize him and reduce the endowment which his heirs shall receive because, prior to his becoming a member of the society, he happened to have other matrimonial experiences.

The judgment must therefore be modified, by increasing the amount thereof to $300 and costs, and, as so modified, affirmed, with costs. All concur.

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Bluebook (online)

147 N.Y.S. 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-independent-bros-of-nieshwis-nyappterm-1914.