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linery business therein could be recovered. In Marrin v. Graver (1885) 8 Ont. Rep. 39, it was held that the Ward Case cannot be regarded as good authority. This was in view of subsequent English cases on analogous questions which do not fall within the scope of the present annotation.

A few cases in which no distinction was drawn between old and new business have involved the question of measure of damages without discussion of the question of loss of profits.

Thus, in Bernhard v. Curtis (1903) 75 Conn. 476, 54 Atl. 213, where a lessor breached his contract for lease of a store to be used for the establishment of a millinery business by failing to deliver possession, it was held that plaintiff's measure of damages was the difference between the rent agreed to be paid and the value of the term, plus such special damages as the circumstances showed the lessee to be entitled to. And applying the rule, the court held that plaintiff could recover for the reasonable cost of all steps necessarily taken by him to protect himself from loss, including expenses necessarily incurred in renting and fitting up another store, and the loss occasioned by having made proper preparation to enter the leased premises, including the loss sustained by reserving or procuring goods for the store, and for the cost of fixtures obtained for the leased place, less the value thereof, but that he could not recover either expenses incurred in procuring another store merely for the purpose of opening a millinery store in the town in a building as well adapted as that originally rented, or expenditures made toward the occupancy of the leased store after notification that possession could not be given, or the depreciation in value of any goods on hand which ordinarily would not be and was not contemplated by the parties to the broken contract.

And in Koneman v. Seymour (1913) 176 III. App. 629, an action for failure to deliver possession of leased prem

ises, it was held that one month's rent, which had been paid in advance, the drayage on goods sent to the place, and any increase in rent which the tenant had been compelled to pay for another place, could be recovered, but that neither the month's rent, nor a lessor amount paid for other quarters, nor the salary of employees for such month, could be recovered.

And in Price v. Eisen (1900) 31 Misc. 457, 64 N. Y. Supp. 405, an action to recover damages for refusal to deliver possession of a store rented for the conducting of a candy, cigar, and soda water business, it was held that the measure of damages was the difference between the rent reserved and the rental value, including a return of rent paid in advance, and that no recovery could be had for loss on store fixtures purchased in advance and without knowledge of the lessor, in the open market, and which were such as could be obtained at any time without delay, or for a loss on goods bought to stock the store, since there was no necessity for purchasing in advance in order to have the benefit of the whole term, because they could have been purchased after possession was obtained without sustaining special loss, they being obtainable in the same city in the open market immediately upon being ordered.

Of course, damages which do not result from the breach of a contract cannot be recovered. This is illustrated by Greer v. Varnell (1901) 27 Tex. Civ. App. 255, 65 S. W. 196, an action for breach of a contract to lease premises for a mercantile business, wherein it was held that plaintiffs, who had been in the business of running a boarding house, and who had dismissed their boarders in anticipation of entering into a new business on the leased premises, could not recover any damages resulting from the boarders so leaving them, since, as they would have been dismissed had the contract been performed, the loss did not result from the breach.

G. J. C.

(223 N. Y. 497, 120 N. E. 93.)

MARION L. EVANS, Exrx., etc., of Griffith Evans, Deceased, Respt.,

V.

SUPREME COUNCIL OF ROYAL ARCANUM et al., Appts.

New York Court of Appeals-May 28, 1918.

(223 N. Y. 497, 120 N. E. 93.)

Insurance-benefit-injunction against suspension

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1. An injunction restraining a mutual benefit society from suspending a member for nonpayment of dues pending a suit to test the validity of an increase in assessment, or from in any manner interfering with his rights and privileges as a member, accompanied by a bond to hold the society harmless in case the rate is found to be legal, will not preserve his status quo in case the suit goes against him, if, by the terms of the contract, he forfeits his right upon failure to pay dues.

[See note on this question beginning on page 169.] Judgment— right to act upon.

2. A decision which is still subject to appeal, that a rate fixed by a mutual benefit society is invalid as to existing members, will not justify a member not a party to the suit in refusing to pay it. Insurance - decree to pay assessment effect.

3. A decree in a suit by a member of a mutual benefit society to test the validity of a by-law raising the rate of assessments, that he pay the increased

rate, will not have the effect of restor-
ing him to membership if he made no
payments during the pendency of the
suit.
Action

party plaintiff

executor.

4. The executor of a member of a mutual benefit society has no interest to maintain an action to secure restoration of the member, after suspension for nonpayment of dues, where the benefit certificate is in favor of his widow.

(Crane, J., dissents.)

APPEAL by defendants from a judgment of the Appellate Division of the Supreme Court, Fourth Department, affirming a judgment of a special term for Oneida County in plaintiff's favor, in an action brought to establish rights in a mutual benefit society. Reversed. The facts are stated in the opinion of the court. Mr. Howard C. Wiggins, for appellants:

The executrix of the last will and testament of Griffith Evans cannot maintain this action.

Bown v. Supreme Council, C. M. B. A. 33 Hun, 263; Beeckel v. Imperial Council, O. U. F. 58 Hun, 7, 11 N. Y. Supp. 321, affirmed in 124 N. Y. 661, 27 N. E. 413; Dominick v. Stern, 79 Misc. 271, 139 N. Y. Supp. 59; Hellenberg v. District No. 1, I. O. B. B. 94 N. Y. 580; Bacon, Ben. Soc. 3d ed. § 237; Wist v. Grand Lodge, A. O. U. W. 22 Or. 271, 29 Am. St. Rep. 603, 29 Pac. 610; Alexander v. Page, 150 N. Y. Supp. 104; Holland v. Taylor, 111 Ind. 125, 12 N. E. 116.

Griffith Evans voluntarily forfeited his membership in the order by failing to pay the assessments lawfully chargeable against him.

Sabin v. Phinney, 134 N. Y. 428, 30 Am. St. Rep. 681, 31 N. E. 1087; Hellenberg v. District No. 1, I. O. B. B. 94 N. Y. 580; Shipman v. Protected Home Circle, 174 N. Y. 398, 63 L.R.A. 347, 67 N. E. 83; Brenizer v. Supreme Council, R. A. 141 N. C. 409, 6 L.R.A. (N.S.) 235, 53 S. E. 835; Makman v. Independent Order, F. S. J. 86 Misc. 13; Paster v. Nagelsmith, 30 Misc. 791, 63 N. Y. Supp. 154; Marshall v. Grand Lodge, A. O. U. W. 133 Cal. 686, 66 Pac. 25; Freckmann v. Supreme Council, R. A. 96 Wis. 133, 70 N. W. 1113;

Bost v. Supreme Council, R. A. 87 Minn. 417, 92 N. W. 337; Feiber v. Supreme Council, A. L. H. 112 La. 960, 36 So. 818; National Union v. Hunter, 99 Ill. App. 146, affirmed in 197 Ill. 478, 64 N. E. 356; National Union v. Shipley, 92 Ill. App. 355; Supreme Lodge, K. H. v. Keener, 6 Tex. Civ. App. 267, 25 S. W. 1084; Chapple v. Sovereign Camp, W. W. 64 Neb. 55, 89 N. W. 423; Hansen v. Supreme Lodge, K. H. 40 Ill. App. 219, affirmed in 140 Ill. 301, 29 N. E. 1121; Beeman v. Supreme Lodge, S. H. 29 Pa. Super. Ct. 387; Stanley v. Northwestern Life Asso. 36 Fed. 75; Roehner v. Knickerbocker L. Ins. Co. 63 N. Y. 163; Wheeler v. Connecticut Mut. L. Ins. Co. 82 N. Y. 543, 37 Am. Rep. 594; Anderson v. Supreme Council, O. C. F. 135 N. Y. 107, 31 N. E. 1092; Hartford L. Ins. Co. v. Ibs, 237 U. S. 662, 59 L. ed. 1165, L.R.A.1916A, 765, .35 Sup. Ct. Rep. 692.

Equity has no power to annul the suspension which resulted from the failure to pay the assessments.

Kerr, Ins. p. 451; Whiteside v. North American Acci. Ins. Co. 200 N. Y. 320, 35 L.R.A.(N.S.) 696, 93 N. E. 948; Atty. Gen. v. Continental L. Ins. Co. 93 N. Y. 70; New York L. Ins. Co. v. Statham, 93 U. S. 24, 23 L. ed. 789, 19 Am. Rep. 512; Klein v. New York L. Ins. Co. 104 U. S. 88, 26 L. ed. 662; Rose v. Rose, 1 Ambl. 332, 27 Eng. Reprint, 222; Thompson v. Knickerbocker L. Ins. Co. 104 U. S. 252, 26 L. ed. 765.

The injunction and undertaking did not prevent suspension.

Scott v. Donald, 165 U. S. 86, 41 L. ed. 636, 17 Sup. Ct. Rep. 265; Crane v. Peer, 43 N. J. Eq. 553, 4 Atl. 72; Barrett v. Bowers, 87 Me. 187, 32 Atl. 871.

Messrs. Lee & Dowling, for respondent:

At the time of his death Griffith Evans was a member in good standing, and his contract of insurance with defendant was in full force and effect.

Langan v. Supreme Council, A. L. H. 174 N. Y. 266, 66 N. E. 932; Makman v. Independent Order, F. S. J. 86 Misc. 13, 148 N. Y. Supp. 141; Mock v. Supreme Council, R. A. 121 App. Div. 474, 106 N. Y. Supp. 155; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 19 L.R.A. 387, 5 Inters. Com. Rep. 522, 54 Fed. 730.

Defendants were amply protected by the bond given by the plaintiff at the time the restraining order was granted,

which continued Griffith Evans as member of the Royal Arcanum.

Re Globe Mut. Ben. Asso. 63 Hun, 263, 17 N. Y. Supp. 852; Gray v. Daly, 40 App. Div. 41, 57 N. Y. Supp. 527; Smith v. Bown, 75 Hun, 231, 27 N. Y. Supp. 11; Langan v. Supreme Council, A. L. H. 174 N. Y. 266, 66 N. E. 932; Makman v. Independent Order, F. S. J. 86 Misc. 13, 148 N. Y. Supp. 141; Mock v. Supreme Council, R. A. 121 App. Div. 474, 106 N. Y. Supp. 155.

Under the broad powers of equity, relief similar to that granted in this case has often been administered.

Meyer v. Knickerbocker L. Ins. Co. 73 N. Y. 516, 29 Am. Rep. 200; Kenyon v. National Life Asso. 39 App. Div. 293, 57 N. Y. Supp. 60; Mock v. Supreme Council, R. A. 121 App. Div. 474, 106 N. Y. Supp. 155; Cohen v. New York Mut. L. Ins. Co. 50 N. Y. 610, 10 Am: Rep. 522; Kelly v. Security Mut. L. Ins. Co. 186 N. Y. 16, 78 N. E. 584, 9 Ann. Cas. 661, 106 App. Div. 354, 94 N. Y. Supp. 601; McClement v. Supreme Court, I. O. F. 88 Misc. 475, 152 N. Y. Supp. 136; Rockwell v. Knights Templars & M. Mut. Aid Asso. 134 App. Div. 741, 119 N. Y. Supp. 515.

McLaughlin J., delivered the opinion of the court:

In March, 1886, Griffith Evans, the plaintiff's testator, became a member of the defendant Supreme Council of the Royal Arcanum, a fraternal benefit society. One of its by-laws provided that the object of the society was to establish a widows' and orphans' benefit fund, from which, on satisfactory evidence of the death of a member in good standing, a sum not exceeding $3,000 would be paid to his widow, if he had so directed.

In his application for membership he agreed that his suspension or expulsion from or his voluntarily severing his connection with the society would forfeit the right of himself and his family, or dependents, to all benefits and privileges therein. He also agreed to make punctual payments of all dues and assessments for which he might become liable, and to conform in all respects to the laws, rules, and usages of the society then in force,

(223 N. Y. 497, 120 N. E. 93.)

or which might thereafter be adopted. Upon this application a certificate of membership was issued to him which provided, in part, that if he complied with the laws, rules, and regulations then existing, or which might thereafter be enacted, governing the council and fund, the society would, upon receiving satisfactory evidence of his death, pay to his widow Marion L. Evans, a sum not exceeding $3,000.

At the time he became a member, assessments of $1.68 were imposed at irregular intervals, which he paid until 1898, when the by-laws were amended and he was required to pay a monthly assessment of $3.44. These assessments he paid until 1905, when the by-laws were again amended, and he was required to pay a monthly assessment of $6.33 until he attained the age of sixtyfive, when it was increased to $16.08. He paid the monthly assessment of $6.33 to and including February, 1913, when he became sixtyfive years of age, and thereafter paid $16.08 each month until the 1st of October of that year, when he tendered the assessment of $3.44 under the amendment of 1898 and also the sum of $6.33 under the amendment of 1905. The tenders were refused upon the ground that the amount due was $16.08, and he was notified at the time of such refusal that unless he paid that sum he would be suspended from membership, and lose all the benefits accruing under the by-laws. In refusing to pay the assessments he relied upon a decision of this court (Green v. Supreme Council, R. A. 206 N. Y. 591, 100 N. E. 411), to the effect that the amendment of 1905, increasing the assessment to $16.08, was unauthorized and invalid.

He then brought this action, the purpose of which was to procure a judgment directing the society to receive the sum of $3.44 each month as his assessment, and to enjoin it from suspending him upon his making such payment. Upon the complaint and affidavits he obtained

an injunction pendente lite, enjoining the society from suspending him as a member and from in any manner interfering with his rights and privileges as such. To obtain the injunction he gave an undertaking in the sum of $250, to the effect that he would pay to the defendant such damages, not exceeding that sum, as it might sustain by reason of the injunction, if it were finally determined that he was not entitled thereto.

This was the situation when he died on March 23, 1915. After his death the action was continued in the name of his executrix, who served a supplemental complaint, in which she asked that it be adjudged he was a member in good standing at the time of his death; that the contract was then in force; and that the valid, legal rate of assessment from October 1, 1913, to the time of his death be determined. At the trial the facts were stipulated, from which it appeared that an appeal was taken from the decision of this court in Green v. Supreme Council R. A. supra, to the Supreme Court of the United States, which reversed this court and held, in substance, that the amendment of 1905 was valid, and assessments made thereunder were binding upon all members of the society. Notwithstanding such decision, and the fact that the assessments stated had not been paid, the trial court reached the conclusion that Mr. Evans, at the time of his death, was a member in good standing; that his contract of insurance was then in force; that the valid and legal rate of assessment for him from October 1, 1913, to March 23, 1915, was $16.08 per month, which the plaintiff was directed to pay, and she was awarded costs against the society. Judgment to this effect was entered upon the decision, from which an appeal was taken to the appellate division, where the same was affirmed, two of the justices dissenting, and defendants now appeal to this court.

I am of the opinion the judgment of the appellate division and of the

special term should be reversed and the complaint dismissed. Mr. Evans, at the time of his death, was not a member of the society. The contract between him and the society was the constitution, by-laws, his application for membership, and the benefit certificate issued thereon. Sabin v. Phinney, 134 N. Y. 423, 428, 30 Am. St. Rep. 681, 31 N. E. 1087; Shipman v. Protected Home Circle, 174 N. Y. 398, 63 L.R.A. 347, 67 N. E. 83; Brenizer v. Supreme Council, R. A. 141 N. C. 409, 6 L.R.A. (N.S.) 235, 53 S. E. 835.

Under the by-laws he had, by his own act in refusing to pay the legal assessments, ceased to be a member, and had terminated his relations with the society. The temporary injunction did not continue him a

Insurancebenefit-injunc

member. All that did, or pretended to tion against sus- do, was to enjoin the pension-effect. society "from suspending" him as a member, "and from in any manner interfering with his rights and privileges" therein. The society did not suspend him, nor did it in any manner interfere with his rights and privileges. He suspended himself.

One of the by-laws provided that "any member failing to pay any regular assessment before the time prescribed for such payment in the laws of the order, or to pay any extra assessment within the time limited or prescribed therefor in the notice thereof, shall stand suspended from the order and all benefits therefrom."

Nonpayment of the monthly assessments, ipso facto, operated as a suspension. Anderson v. Supreme Council, O. C. F. 135 N. Y. 107, 31 N. E. 1092. No affirmative action on the part of the society was required. The by-laws were self-executing. Roehner v. Knickerbocker L. Ins. Co. 63 N. Y. 160; Freckmann v. Supreme Council, R. A. 96 Wis. 133, 70 N. W. 1113; Bost v. Supreme Council, R. A. 87 Minn. 417, 92 N. W. 337; Marshall v. Grand Lodge, A. O. U. W. 133 Cal. 686, 66

Pac. 25; Hunter v. National Union, 197 Ill. 478, 64 N. E. 356.

The fact that this court in Green v. Supreme Council, R. A. supra, had erroneously decided that the assessments which he refused to pay were invalid, was not a legal excuse for nonpayment. This was conclusively settled and determined by the Judgment-right Supreme Court of

to act upon.

the United States (Supreme Council, R. A. v. Green, 237 U. S. 531, 59 L. ed. 1089, L.R.A.1916A, 771, 35 Sup. Ct. Rep. 724) when it reversed the judgment of this court. When he refused to pay the assessments, he took his chances that the decision of this court, on appeal, would be sustained. In October, 1913, when he tendered $6.33 as his assessment for that month, he was obligated to pay $16.08, and he should have paid that amount. A valid by-law so provided, and he had agreed that his rights were to be determined by it. He therefore, by his own voluntary act, severed his membership in the society when he violated his part of the agreement, which was "to make punctual payments of all dues and assessments for which I may become liable." For nearly a year and a half before his death he paid nothing to the benefit fund. He could not, during that time, be a member for the purpose of receiving benefits, and not for the purpose of making payments imposed.

It is no answer to the suggestion to say that the court, by its decree, directed his executrix to pay the assessments which he ought to have paid in his lifetime. Insurance-deA contract of this eree to pay ascharacter, once de- sessment-effect. stroyed, cannot be brought back to life in that way. It is beyond the power of a court of equity to so decree. Had Mr. Evans lived he would have been under no obligation to make the payments. The society could not have compelled him to make them. The injunction given imposed no such obligation. He did not even offer or agree to

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