Foley v. New York Mutual Benevolent Society

Clarke, J.: The appellant, New York Mutual Benevolent Society, was incorporated under the laws of the State of New York relating to membership corporations on July 30,1907. Its certificate of incorporation states “ that the particular objects for which said corporation is formed are as follows, viz: To aid deserving members according to law; said aid must be voluntary and not. otherwise.” The constitution and' by-laws provide, inter alia, as follows : “ Sec. 2. The object of this society is to aid deserving members in good standing. * * * Sec. 6. * * * It shall be the duty of the counsel to this society to represent and protect the rights and interests of any member of this society in all the -courts of this State, including trials or proceedings affecting this society, and the — 182 — legal rights of its. members lipón'all police matters, all'of which shall be done for and in the name of this society, without cost to the individual mémber. Sec. .7. Any member who may be dismissed from the department and is reinstated through the efforts of counsel for this society, oh his receiving Iris back salary he shall compensate the society , for the amount -, spent by the society, for printing, etc., to bring his case before the courts of jurisdiction.- * *. * Sec. 9, Any uniformed member except matrons of the Hew York city police-force may apply for membership; in this society any time within six (6)-years .after his appointment in the department. . The initiation'-'feé shall be"twenty-fiye (25) cents and.the dues twenty-five (25) cent's every alternate month. ' * * * Sec. 14. Every, member will- be assessed fifty (50) cents for each member killed ; or who may die from injuries received while making an arrest-or attempting to save life, and twenty-five (25) cents for' death, dismissal or retirement of a member. But there shall not be any more than eight assessments paid in any one month, and any member who'may resign from the police department aiid'who shall have been a member of the society fbr five years, or any member who shall resign from' the police department and who has been ea member of this society for three years, he may pay all dues and assessments until he is five years' a member, when lie shall receive his endowment. Any one who lias resigned from the police department and is still a member of this society cannot attend meetings and is not entitled t¿ any othér bene- ■ fit except endowment. Any member who may absent himself from duty-for five days- or more and is therefor dismissed from the ■department relinquishes all claim to-.;any benefit.of this society. Or.' any member convicted of crime,- or any member' who. is exceptionally reckless,, or apparently seeks dismissal after- investigation and report by-the board of:directors;' if such report favors depriving ;-such members of their benefits and find'to their satisfaction they, are guilty of any of the above sections, they will be.deprived of any benefits derived from membership in this society, A'm.ember must be in. good standing in this society for one' (1). year before he will- be entitled to. any benefits, except death, or dismissal. * * * There sliall be maintained a contingent fund for the purpose of paying . any of the liabilities of this, society.. * f Sec; 17. Any officer of -the police department above t-lie rank of -patrolman who may . — 183 — join this society is not eligible to attend any meeting^ but may submit in writing through the ' delegate of1 his precinct or squad any question he wishes discussed ■ in the interest of -the society, and it will receive due consideration.” The respondent for more than twelve years prior to April 24, 1909, was á patrolman in the police department of the city of New York, and for eight months prior to April 24, 1909, had been a member of the society in good standing. ■ ■ On April 21, 1909, the police commissioner ordered a board of three police surgeons to examine the respondent.' On April twenty-third they certified to the commissioner the result of their examination ; whereupon the following order was made by the commissioner : ■ “ New York, April 24, 1909. “Special order No. 108B having been made on the 21st day of April, 1909, directing Police Surgeons Samuel M. Johnson, Edward J. Donlin and Francis J. Murray to proceed to the examination'of patrolman James Foley, 26th preet., who has been a member of the police force more than ten years and less than twenty-five years, for the. purpose of ascertaining whether he is superannuated by age, permanently insane, or mentally incapacitatéd or disabled physically or mentally so as to be unfitted or unable to perform full police duty by reason of such disability or disease contracted without misconduct on his part, and said Police Surgeons having conducted such examination and having reported and certified the result thereof in writing and the. cause, nature and extent of his disability and that the said James Foley is disabled physically so as to be unfitted and unable to perform full police duty by reason of such disability or disease contracted without misconduct on his part, and it appearing that section 354, subdivision 4, of the Greater New York Charter is applicable to such, case, it is ordered that Tames. Foley, a member of the Police Force of the City of New York, be and lie hereby is retired and "dismissed from membership in the said Police Force, and he is hereby granted a pension at the rate of $445.00 per annum,' the said pension to be paid and the payment thereof to be subject to the-laws and statutes in that case made and provided and the rules and regulations of this department with reference thereto. Ordered, that this order take effect this day at midnight, to-night.” — 184 — . On said date the defendant -had a membership of 2,689 members. For several months theretofore • the number " of assessments made upon the members of defendant or paid did not exceed eight. The respondent made a proper demand, but no assessment for arid .no payment of benefit were ever made; whereupon this siiit wás brought and judgment was rendered in respondent’s favor for $672.50, with - costs and disbursements. From said judgment this appeal is taken.' , Appellant contends: First, as the certificate of incorporation provides that-the objects óf the corporation :are to aid deserving rnemhers according to law;- said aid must be "voluntary, and not other-, wise,’’, no- action will lie to compel it tó furnish the aid so provided to be voluntary.. The.constitution arid by-laws constitute-the contract between the society-and a member. .The' socie.ty promised that if "the member-, should pay the required dues and assessments and'othef wise conform to the provisions of the constitution arid by-laws he would be entitled to certain prescribed benefits.. If, without right, the society breached. i’ts"contra,ct, we have no doubt a. cause of action accrued, “ When, the deferidant refused tó make an assessment it violated its contract, and -became liable to'tlie-plaintiff for the damages caused ■ by such violation ; and such damages like all damages for breaches of contracts can bé recovered, by an actiori at law. So it has been held in many analogous cases. * * * ' The plaintiff was, therefore, entitled to recover,something, and what was the measure of his " damages? Just what he lost by the defendant’s breach of its con--' ■tract. He was .entitled to have. an assessment made and. cob lected, and the proceeds thereof paid, to liim.” (O’Brien v. Home Benefit Society, 117 N. Y. 310.) Second. As the Constitution provides-“ a'membér must be in good standing in this society for one (1) year before he will be entitled to • any benefits-except death or dismissal,” appellant ¡contends respond^ ent was not entitled .to the benefit because he had been a- member - for otily eight irionths and had not died or been dismissed from the police force but had been retired. ■ We think respondent was dismissed f'roin the force and, therefore, ■ comes within the exception. The appellant contends that the word “ dismissal ” imputes a culpable violation of some rule or regulation,.or laws, and" cites McCor — 185 — mick v. McCarton (95 App. Div. 426). In that case the Police Sergeants’ Endowment and Benevolent Society of the City of New York, a voluntary association organized in the year 1899, was under consideration. Its constitution provided that upon the dismissal from the police force of any member of the society in good standing he should receive $250! By resolution the amount payable upon a dismissal from the force or at the death of a member was raised from $250 to $350 and no payment was to be made upon the retirement of a member as a police officer. The plaintiff in that case had been dismissed from the police department upon charges. He brought the action for the $350 provided for in the resolution referred to. This court said: “ The money that the plaintiff seeks to recover is money contributed by police sergeants who are members of this association, and it was to be paid to an officer who has been dismissed, as indemnity for the penalty imposed for a violation of his police duty, when such a violation results in his dismissal from the force.- That'such an agreement among public officers is against public policy would seem to be clear from a mere statement of the case.” That decision was rendered in June, 1904, and as the society at bar was not incorporated until .July, 1907, it must be assumed that its constitution was adopted in view of the rule of law as announced, and especially.as it had been pronounced in the case of .a similar society in the same police department. That this is so is shown by the provisions of section 14 thereof, that “ any member who may absent himself from duty for five days or more and is therefor dismissed from the department relinquishes all claim to any benefit,” evidently referring to section 303 of the city charter providing that “absence, without leave, of any member of the police force for five consecutive days shall be deemed and held to be a resignation, and the member so absent shall, at the expiration of said period, Cease to be a member of the police force and be dismissed therefrom without notice,” and the further provision, “ or any' member convicted of crime, or any member who is exceptionally reckless or apparently seeks dismissal, * * * will be deprived" of any benefits derived from membership in this society.” The framers of this constitution thus carefully guarded the provisions for the benefit upon dismissal from being held illegal as — 186 — against public policy under the. rule laid down in the McCormick case. .But it was. dismissal, under charges or for misconduct, that was-condemned; In interpreting a law, a-contract, a Will, or other-document, all of the words used must be given effect if possible. We must assume, therefore^ when the' provision was made for the payment of a benefit, upon dismissal .and dismissal was excepted from the limitation that the member must have been in good standing for a year prior thereto, such dismissal was not' of the character-condemned by-law. ‘ -.... .We find in the Greater Hew. York charter provisions fully suStaming this interpretation and demonstrating that an officer may be ■ dismissed, from the department not alone without odium '.thereto attaching, but .even evidencing conspicuous and meritorious conduct. Section 353 of' the charter (Laws of 1901, chap.'466, as- amd. by Laws of .1904, chap; 626) provides for a police pension- fund derived from, A number of sources, including two per.cent of the pay of each member of the police force deducted monthly by the comptroller, with a further provision that in case the amount derived from the different so.urees mentioned-in'the section shall not be" sufficient, it shall be the duty of the board of -estimate and Apportionment and the board of áldermén to make an appropriation sufficient to provide for such deficiency. Section 354 (as amd. by Laws of 190Y,: cliap. 445) provides: “ The police commissioner shall have power, in his .discretion, to . retire and' dismiss-from 'membership in the said police, force, and thereupon to grant pensions' to, as hereinafter provided, any member of the. police force of said city who shall have become disabled, physically or mentally, or su.perannuated by age. so as .to - be" unfit for .police duty, * * . *' to' be paid from the police- pension -fund as follows: * * *• 3. * * * To any such member of Any such police force who, whilst . in the actual performance of duty and by reason of tlie performance .of such duty, and without fault, or. misconduct, on his part,, shall' have become permanently' disabled, physically or mentally so as to be unfitted to perform full police duty, a sum not exceeding.one-half nor less-than one-fourth of his rate of compensation, per annum. 4. To any such member of the said police force who shall, after ten years-and less than twenty-five years’ membership in'any such police force, become superannuated by age, permanently.insane or mentally — 187 — incapacitated, or disabled physically or mentally,' so as to be unfitted or unable to perform full police duty by reason of such disability or disease contracted without misconduct on his part, a sum not to exceed one-half nor less than one-fourth of his rate of compensation per annum.” Section 355 provides that: “ Any member, of the police force being of the age of fifty-five years- who has dr shall have performed duty on such police force as aforesaid for a period of twenty years or upwards, upon his own application in writing, may, or upon a certificate of so many of the police surgeons as the police commissioner may require, showing a member of' whatever- age who has served twenty years is permanently disabled, physically or mentally so as to be unfit for duty, shall, by order of the police commissioner, be relieved and dismissed from said force and service and placed on the roll of the police pension fund, .* * * and any member of the police force who .has, -or shall have performed duty on any such force aforesaid for a period of twenty-five, years or upwards, being of the age of fifty-five years, or any member of any such police force who is an honorably discharged soldier or.sailor from the army and navy of the'United States in the late Civil War, who shall have reached the age of sixty years, or any such soldier or sailor who has performed duty on any such force for a period of twenty years, upon his own application in'writing, provided there are no charges against him pending, must be relieved and dismissed from said force and service by the department and placed on the roll of the police pension, fund, * * * and the said commissioner may in like manner relieve and dismiss from the service 'and place on the roll of the police pension fund, and grant and award a pension to any member of said force other than an. honorably discharged soldier or sailor of the Mexican or late-Civil War who shall have reached the age of sixty years.” - So that direct provision of law is made for the dismissal of members of the force injured in the line of duty, incapacitated for active service by disability or disease contracted without misconduct, veterans of the Civil or Mexican wars, or veterans of the force itself, after having served therein the prescribed period of years. Upon the face thereof such dismissals are honorable, but they are none the less dismissals. Applying the rule of interpretation above alluded to — 188 — to thé constitution and by-laws of 'the appellant, we hold that , the dismissals provided for in the sections of the charter cited were the dismissals contemplated in the words “ a member must be in good standing in this society for one (1) year before he will be entitled to any benefits, except death or dismissal.”, ■ As it appears'conclusively by the proof that the.respondent was honorably, dismissed from the department, he is entitled to recover the benefit provided for. .. It follows, therefore, that the judgment appealed from should be • affirmed, with costs and disbursements to the respondent. Ingraham, P. J., McLaughlin, ' Scott and' Dowling, JJ., concurred. ■ ■ '■ ■ Judgment affirmed, with, costs.