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erence to that class and section, we find to be, firstly, the "member's wife." It is conceded that the decedent left him surviving his widow, the defendant here, and that she was his lawfully wedded wife at and prior to the time when he attempted to designate the plaintiff as his "affianced wife." The latter relation neither did nor could exist at that time, and, the designation failing for illegality, the benefit became payable to the member's wife, as provided by section 330, supra. "The laws of the association, as found in its constitution, must govern the rights of these parties. No member could dispose of his interest in the endowment fund contrary to those laws, nor except as permitted by them. * * No designation could be valid unless made in accordance with the laws and rules' of the association." Sanger v. Rothschild, 123 N. Y. 577, 579, 26 N. E. 3.

The plaintiff's retort to the plain provisions of the laws of the society, above quoted, is that defendant is in no position to advance them, as such prerogative is reserved by the law of the state to the society alone. And the cases of Luhrs v. Supreme Lodge, 7 N. Y. Supp. 487;1 Maguire v. Maguire, 59 App. Div. 143, 69 N. Y. Supp. 61; and Coulson v. Flynn, 181 N. Y. 62, 73 N. E. 507, are cited to support that contention. In the Luhrs Case, supra, it appeared clearly that, upon the naming of a beneficiary disentitled to the benefit, the laws of the society commanded a payment of such benefit either to the personal representative of the member or reverted it back to the relief fund, and it was held that, as the certificate under which the plaintiff claimed had been surrendered and canceled, her rights under it were ended.

The court then added to this ruling the following language:

"The association only can raise the question as to whether the beneficiary named in the certificate is entitled to claim, and this defense cannot be interposed by a person in whose favor no certificate exists and who has no other claim."

In the Maguire Case, supra, the Appellate Division, citing the Luhrs Case, say that the contention that the designation of the beneficiary was ultra vires the council would be available to the council alone, and added:

"In any event, it cannot be maintained by the plaintiffs, who have no certificate, and who came into court without any basis for any claim whatever."

In the Coulson Case, supra, the two cases last cited were approvingly referred to; but the court, as it seems to me, extended the scope of the phrases, "who has no other claim" and "without any basis for any claim whatever," when it said that those cases held that the claimants came "into court having no certificate at all and without a contract basis for any claim whatever." It may be that the possession of a certificate is to be deemed a contract basis for the claim, but that can hardly be so regarded when the nature of the liability is considered, based as it wholly is upon the member's membership and his relations to the society, and not at all upon the status of

1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 54 Hun, 636.

the beneficiary. The Coulson Case held that the language of the certificate constituting Flynn (the defendant) the beneficiary was in conformity with the society's act of incorporation; and no other support of the rights of the beneficiary was necessary to uphold the judgment in his favor.

It is quite clear to my mind that the cases relied on in the Coulson Case in support of the holding that there was no contract basis for the claim did not so hold, but that they simply determined that the claimants there were in court without any basis for any claim. An examination of the record on appeal in the Maguire Case shows that the question involved was whether or not the defendant Kate Maguire, "niece," was one of the "family" of the member; and that record further shows that the laws of the society there involved did not provide that in the case of an illegally named beneficiary a reversion of the fund took place to one who could be legally named, such as is so explicitly provided for at bar. I do not understand the cases referred to hold as a definite proposition, applicable to every controversy between rival claimants, that perforce the interpleader the illegality of designation is waived. What they clearly do hold is that the defeated claimants had no basis whatever for their claims after their certificates had been canceled and surrendered, for the reason that nothing was saved to them under the laws of the respective societies. The effect of the interpleader in the case at bar, in my opinion, is well stated by Judge Pryor in Di Messiah v. Gern, 10 Misc. Rep. 30, 31, 30 N. Y. Supp. 824, 825, where in disposing of a similar contention he said:

"It is said that the lodge alone may avail of this fraud, and that by bringing the fund into court it signifies its assent to a payment to the plaintiff. Plaintiff's certificate is the sole muniment of her title, and if that be invalidated she has no claim to the money. By interpleading the parties the lodge brings the fund into court for the one to whom it shall be adjudged. This, surely, is no waiver of the fraud, but is a submission of its effect to the decision of the court."

See, also, Kult v. Nelson, 24 Misc. Rep. 20, 53 N. Y. Supp. 95. Another ground upon which the judgment in the Coulson Case was upheld was that of an estoppel against the society itself which precluded it from questioning the validity of the certificate; and it is not pretended that the society at bar would have been estopped from interposing the defense of illegality of designation had it itself defended in lieu of interpleading the defendant. As the alleged "affianced wife” here could only have been so designated upon furnishing to the society evidence of the relationship, and as the proof of the existence of such relationship was expressly made inconclusive by its laws, the fraud is apparent and should not be sanctioned by a court of equity. Complaint of the exclusion of evidence showing that plaintiff loaned money to the decedent is without merit. Plaintiff was designated as "the affianced wife," and not as one "dependent upon the member for maintenance." A loan by plaintiff to the decedent would not indicate her to be a "dependent."

Judgment for defendant.

MCCARTHY et al. v. FITZGERALD.

(Supreme Court, Special Term, Schenectady County. April, 1912.)

1. SALES (§ 353*)—ACTION FOR PRICE-Complaint.

A complaint, alleging that defendant was indebted to plaintiff in a specified sum on account of lumber sold and delivered to defendant at prices agreed upon, and for which he promised to pay, and that there was justly due and owing the plaintiff from defendant a specified sum, was insufficient, since it did not show that the lumber was sold by plaintiffs, or, if sold by another, that the claim had been assigned to plaintiffs, nor that defendant's promise to pay was made to plaintiffs, and a plaintiff must not only allege a cause of action in favor of some one, but must show that it exists in favor of himself.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 995-1004; Dec. Dig. § 353.*]

2. PLEADING (§ 214*)-DEMURRER-FACTS ADMITTED.

A demurrer admits the truth of all the facts alleged and such inferences as may reasonably and fairly be drawn therefrom, but does not admit conclusions of law.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. 214.*]

3. PLEADING (§ 350*)-MOTION-EFFECT OF MOTION.

A defendant, by moving for judgment on the pleadings, admits every material allegation of the complaint.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1053, 1054, 1070-1077; Dec. Dig. § 350.*]

4. PLEADING (§ 8*)-FORM OF ALLEGATIONS-FACTS OR CONCLUSIONS.

An allegation of an indebtedness in favor of plaintiff, without stating any facts from which the inference or conclusion that defendant is so indebted may reasonably and fairly be drawn, is not an allegation of fact, but a conclusion of law, insufficient to sustain a cause of action.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 12-281⁄2; Dec. Dig. § 8.*]

5. PLEADING (§ 350*)-MOTION FOR JUDGMENT ON THE PLEADINGS-AMENDMENT.

Where defendant moves for judgment on the pleadings, consisting of the complaint and a demurrer thereto, the court, in granting the motion, may permit plaintiff to plead over as if the cause had been brought on for hearing on the demurrer.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1053, 1054, 1070-1077; Dec. Dig. § 350.*]

Action by Dennis McCarthy and another against James P. Fitzgerald. On motion of defendant for judgment on the pleadings, consisting of the complaint and a demurrer thereto, on the ground that the complaint is insufficient. Motion granted.

James S. Kiley, of Glens Falls, for plaintiffs.

Slade, Harrington & Goldsmith, of Saratoga Springs, for defendant.

WHITMYER, J. [1] The complaint alleges:

"That the defendant is indebted to the plaintiff in the sum of $1,609.78 on an account for goods, wares, and merchandise, consisting of lumber sold and delivered to the defendant at Saratoga, N. Y., on the 16th day of November, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

1907, and on the 17th day of December, 1907, at his special instance and request, at prices agreed upon and for which the defendant promised to pay."

It also alleges:

"That said lumber so sold and delivered as aforesaid was reasonably worth the said sum of $1,609.78, so charged therefor; that no part of said account has been paid, except that there has been credited to said defendant to apply on said account the sum of $1,457.36, and there is now justly due and owing this plaintiff from said defendant the sum of $152.42, with interest thereon since the 3d day of October, 1908."

The complaint does not state facts showing that the lumber was sold and delivered by the plaintiffs to the defendant, or, if sold by another, that the claim therefor has been assigned to plaintiffs, nor does it state that defendant's promise to pay therefor was made to plaintiffs. It does not show any connection between the parties, except that it states that the defendant is indebted to the plaintiffs.

The complaint in an action must contain a plain and concise statement of the facts constituting the cause of action. Code Civ. Proc. § 481, subd. 2. It is incumbent upon a plaintiff to allege sufficient facts to show that he is concerned with the cause of action averred, and is the party who has suffered injury by reason of the acts of defendant. In other words, it is not enough that he alleges a cause of action existing in favor of some one. He must show that it exists in favor of himself. Cyc. vol. 31, p. 102; Weichsel v. Spear, 47 N. Y. Super. Ct. 223, affirmed 90 N. Y. 651; Ralli v. Equit. Mut. Fire Ins. Co., 16 Misc. Rep. 357, 38 N. Y. Supp. 87.

[2, 3] A demurrer admits the truth of all the facts alleged and such inferences as may reasonably and fairly be drawn therefrom, but does not admit conclusions of law. Baylies on Code Pleading and Practice, p. 340; Greeff v. Equitable Life Assurance Society, 160 N. Y. 19, 29, 54 N. E. 712, 46 L. R. A. 288, 73 Am. St. Rep. 659. And a defendant, by moving for judgment on the pleadings, admits every material allegation of the complaint. Clark v. Levy, 130 App. Div. 389, 114 N. Y. Supp. 891.

[4] The allegation here is one of indebtedness only, and no facts are stated from which the inference or conclusion that defendant is indebted to plaintiff may reasonably and fairly be drawn. An allegation of indebtedness, however, is not an allegation or statement of a fact, but of a conclusion of law, and is insufficient to sustain a cause of action. Sampson v. Grand Rapids School Co., 55 App. Div. 163, 66 N. Y. Supp. 815; Tate v. American Woolen Co., 114 App. Div. 106, 99 N. Y. Supp. 678; Nealis v. Marks (Sup.) 96 N. Y. Supp. 740.

[5] The court may permit plaintiff to plead over in the same way as if the case had been brought on before it on the argument of the demurrer. National Park Bank v. Billings, 144 App. Div. 536, 129 N. Y. Supp. 846.

The motion for judgment must therefore be granted, with $10 costs, but with leave to plaintiff to serve an amended complaint within 10 days after service of the order to be entered herein, entry of judgment in the meantime to be suspended.

(78 Misc. Rep. 453.)

In re PETERS.

(Supreme Court, Special Term for Motions, Kings County. December, 1912.) RECEIVERS ( 110*)-SUPERINTENDENT OF BANKS-LIQUIDATION-PAYMENTS TO DEPOSITOR-JURISDICTION.

An application by an executor for an order directing the Superintendent of Banks to pay, out of the moneys in his possession as liquidator of a bank, the amount of his decedent's deposit therein, with interest, the return of which decedent had demanded on learning that the institution was not a savings bank, would be denied for want of jurisdiction.

[Ed. Note. For other cases, see Receivers, Cent. Dig. §§ 195-197; Dec. Dig. § 110.*]

Application by William Peters, executor, for an order directing George C. Van Tuyl, Jr., Superintendent of Banks, to pay over certain moneys in his possession as liquidator of the Union Bank of Brooklyn. Motion denied.

Stroock & Stroock, of New York City (Edward F. Spitz, of New York City, of counsel), for the motion.

Louis Goldstein, of Brooklyn (Rufus O. Catlin, of Brooklyn, of counsel), for Superintendent of Banks, opposed.

STAPLETON, J. This is an application for a summary order directing the Superintendent of Banks to pay over, out of moneys in his possession as liquidator of the Union Bank of Brooklyn, the sum of $1,100, with interest from the 4th day of April, 1910. The applicant presents a petition and supporting affidavits. The respondent. interposes an answer denying the material allegation of the petition, and rests his opposition as to the facts upon that document.

The petitioner alleges that he is the executor of the last will and testament of Carl Peters, deceased; that the Union Bank of Brooklyn, at all the times mentioned in the petition, was a banking corporation; that on April 4, 1910, the Superintendent of Banks, by virtue of the authority vested in him under the banking law of the state, assumed control of the Union Bank, but not actual charge of the branch in which decedent made his deposit; that on the 5th day of April, 1910, the Superintendent designated a special deputy to take charge of the liquidation of the bank, and that that special deputy has ever since been in charge; that the testator of the petitioner was of German birth and limited education, being unable to read English and speaking the English language with difficulty; that on the 4th day of April, 1910, he was upwards of 70 years of age and laboring under a general impairment of the faculties, due to advancing years; that on the 4th day of April, 1910, the decedent withdrew from the Hamilton Trust Company the sum of $2,600, his sole means of support, which had been acquired by him from the estate of his deceased wife; that he withdrew said sum in two checks, one for $1,500 and the other for $1,100, in order to deposit them in savings.banks and thereby to secure a higher rate of interest; that the decedent deposited one of the checks the one for $1,500-in a savings bank, to wit, the East New

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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