payment with the forged signature, and with the signature of said Seybold, and the signature of the defendant bank thereupon. The plaintiffs paid the checks and charged them to the account of Westcott, the maker. The DunnSalmon Company gave credit to Westcott for the checks, and sued the plaintiffs in conversion for the payment of their checks upon a forged signature. Of this action the plaintiffs gave the defendant notice, with a request to defend the same. The defendant declined to assume the defense of the action, although its officers stated that they believed a good defense existed. The action was defended by the plaintiffs, and the defense was successful as to the check for $64.42, but unsuccessful as to the other checks, and judgment was entered against the plaintiffs for the amount of those two checks, aggregating, with interest, at the time of the judgment, $54.36. To this sum as damages was added in the judgment the sum of $155.04 as costs. This judgment has been paid by the plaintiffs. The expense of the plaintiffs for counsel in defending that action was $72.48. For these sums, to wit, the amount of recovery, including costs, and the amount expended for counsel in the defense of the action brought by the Dunn-Salmon Company, these plaintiffs sued the defendant. Thereafter the matter was agreed to be submitted under section 1279 of the Code of Civil Procedure. Up to the time of said agreement costs of the action amounting to $23 had accrued.

Fire questions are here submitted: First, whether the plaintiffs are entitled to recover from the defendant the amount of the $33.75 check, together with interest; second, whether the plaintiffs are entitled to recover of the defendant the amount of the $8.32 check, with interest; third, whether the plaintiffs are entitled to recover of the defendant the sum of $155.04, the costs included in the judgment against the plaintiffs brought by Dunn-Salmon Company; fourth, whether the plaintiffs are entitled to recover of the defendant the sum of $72.48, the amount of their costs for counsel fee in defending said action; fifth, whether the plaintiffs are entitled to recover of the defendant the sum of $23, being the costs in the action brought by the plaintiffs against the defendant which had accrued prior to this submission to the court.

Louis F. Doyle, for plaintiff.

John O'Donnell (Riley Champlin, of counsel), for defendant.

SMITH, J. Defendant admits its liability upon the matters. specified in the first, second, and fifth questions. It denies its liaability either for the costs included in the judgment of the DunnSalmon Company against the plaintiffs, or for counsel fee paid by the plaintiffs in the defense of that action. These two, then, are the only disputed questions here for determination. In Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74, the plaintiff had paid a check to which the name of the payee had been forged, after which forged signature, however, the defendant had indorsed the same. The depositor whose moneys had been wrongfully paid out by the plaintiff procured judgment against the plaintiff for the amount of moneys thus paid out, and for costs. In an action brought by the plaintiff against the defendant upon its indorsement made subsequent to the forged indorsement, it was held that the plaintiff might recover the amount of the checks, with interest, but could not recover the costs included in the judgment which plaintiff had paid to its depositor. Danforth, J., in discussing the authorities cited in behalf of the plaintiff in that action said, on page 80:

"In the other cases cited by the respondent, the plaintiff had become liable to costs in actions in which he had a remedy over against the then defendant, but in none of them did it appear that the action in which the costs were incurred was caused in whole or in part by the wrongful act or omission of

and 123 New York State Reporter

duty on the part of the original defendant. No case, I think, can be found in which the right to costs of defending an action so caused has been upheld, and that is precisely the position of the plaintiff here."

If, in the case at bar, the action had been brought by Westcott against the plaintiffs to recover his deposit instead of by DunnSalmon Company for the conversion of the checks, the cases would then have been hardly distinguishable, and the authority of the case eited would probably be unquestioned. Within the reasoning, however, of Judge Danforth in that case, I am unable to see that the changed condition affects the force of the authority. In the case. cited the plaintiff had failed in its duty to its depositor, and in the action brought to enforce that duty had been compelled to pay costs. These costs it sought to recover against a defendant who had guarantied, by its subsequent indorsement, the forged indorsement. Nevertheless the court held, because the costs were recovered in an action wherein it was charged with a violation of duty, it could not recover the same against the defendant therein, who was only connected with the check by reason of its subsequent indorsement. In the case at bar judgment has been recovered against the plaintiffs for a wrong for the conversion of a check which was the property of the Dunn-Salmon Company. This is certainly no less a wrong than the payment of moneys belonging to a depositor upon a forged indorsement. If the case were a new one, I should have grave doubt whether these questions could be raised by the defendant bank, who had warranted the genuineness of that indorsement by its subsequent indorsement. Under the authority cited, however, we feel bound to hold that, by the payment of the costs in the judgment of the Dunn-Salmon Company, the plaintiffs have secured no right to indemnity as against the defendant.

It is unnecessary to discuss the various cases cited by the plaintiffs herein, as they are fully discussed in the Case of Corn Exchange Bank, cited above, and we can see no facts which would take the case out of the principle there cited. That the defendant in this case approved of the defense interposed by the plaintiffs cannot alter its liability after having specifically declined to assume the defense. Nor can the plaintiffs' right be affected by their good faith in asserting the defense or their partial success in defeating a recovery upon one of the checks which were the subject of the action.

The third and fourth questions must be answered in the negative, and judgment ordered for the plaintiffs for the sum of $33.75 with interest from September 1, 1897, for the sum of $8.32 with interest from February 24, 1898, and for the sum of $23, with costs. All concur.

(96 App. Div. 491.)

FARGO v. SUPREME TENT OF THE KNIGHTS OF THE MACCABEES OF THE WORLD.

(Supreme Court, Appellate Division, Fourth Department. July 6, 1904.)

1. MUTUAL BENEFIT INSURANCE-BY-LAWS-CHANGE-EFFECT ON EXISTING POLICIES.

When deceased was insured by a mutual benefit association, its by-laws provided that no benefits should be paid when death was the result of suicide within one year after admission. Such provision was amended so as to provide that no benefits should be paid when death was the result of suicide, whether deceased was sane or insane, within five years after admission, except that in such case all assessments should be repaid. Thereafter deceased's certificates were canceled, and new certificates issued in the same amount, after which the by-laws were again amended so as to provide that no benefits should be paid when death resulted from suicide whether the member was sane or insane, but that in such case twice the amount of all assessments paid should be repaid to the beneficiary. Deceased died as the result of suicide, while insane, after having been a member for more than five years. Held, that such association had no power, as against deceased, to pass the last amendment, striking out all time limit as to suicide and that decedent's beneficiary was therefore entitled to recover the face value of the certificates.

2. SAME-WAIVER.

Where an amendment of a by-law of a mutual benefit society relating to suicide was unreasonable in so far as it affected existing members, the fact that a representative from the local lodge of one of such members was in attendance at the meeting of the superior lodge when the amendment was made did not constitute a consent to such amendment on the part of such member.

Submitted controversy between Anna J. Fargo against the Su-preme Tent of the Knights of the Maccabees of the World. Judgment for plaintiff.

Argued before MCLENNAN, P. J., and WILLIAMS, HISCOCK, and STOVER, JJ.

Woodworth & Greff, for plaintiff.

Love & Quackenbush and Franklin Kennedy, for defendant.

WILLIAMS, J. Judgment should be ordered in favor of the plaintiff for $2,000, with interest from December 8, 1903, and costs. The question to be determined is whether the plaintiff is entitled to recover the full amount specified in the certificate, $2,000 and interest, or double the amount paid into the life benefit fund during the membership of deceased, $307.20, and interest. The defendant is a mutual benefit fraternity, organized under the laws of Michigan, and doing business in the state of New York pursuant to article 7 of the insurance law (Laws 1892, p. 1933, c. 690). The deceased became an endowment member of defendant September 13, 1894, for an amount not to exceed $1,000, and a certificate was issued, naming the plaintiff, who was his wife, as beneficiary. The deceased also became an endowment member of the Great Camp, Knights of the Maccabees for New York, a subordinate body of the defendant, on the same day, for an amount not to exceed $1,000, and a certificate was issued naming the plaintiff as beneficiary. In the month of July, 1898, the latter or

89 N.Y.S.-5

and 123 New York State Reporter

ganization resolved to transfer its endowment certificates to the defendant, which agreed to assume all liability therefor in conformity with and pursuant to its laws then in force. Pursuant to such resolution the endowment certificates in question were transferred to the defendant, which, at the request of the deceased, on September 1, 1898, canceled such certificates, and issued in place thereof a new certificate for an amount not exceeding $2,000, naming the plaintiff as beneficiary. The deceased died October 9, 1903, as a result of suicide, while insane. All assessments were paid during the lifetime of the deceased, and he was a member in good standing until the time of his death, and the certificate of September 1, 1898, was valid and in force when he died. When the two original certificates were issued in 1894 the by-laws of the defendant and its subordinate provided (section 173) that no benefit should be paid when death was the result of suicide, within one year after admission, whether the member so taking his own life was sane or insane at the time. In 1897 section 173 of the by-laws was amended so as to provide that no benefit should be paid when death was the result of suicide within five years after admission, whether the member so taking his own life was sane or insane at the time; provided that in case of such suicide all assessments paid in should be repaid to the beneficiary, and such. amount should be the full amount that could be claimed. In 1901 section 173 of the by-laws was redesignated as section 432, and amended so as to provide that no benefits should be paid when death was the result of suicide, whether the member taking his own life was sane or insane at the time; provided that in case of such suicide twice the amount of all assessments paid in should be repaid to the beneficiary, which amount should not exceed the face of the certificate, and should be the full amount that could be claimed. The defendant claims this by-law-section 432-is binding upon the plaintiff, and that she can claim under it only $307.20; while the plaintiff claims it is not binding upon her; that she is only bound by the original by-law, section 173, in force in 1894, when the original certificates were issued, or at least that section as amended in 1897; and, the suicide not having occurred within one or five years, she is entitled to the full amount of the certificate, $2,000. The only question, therefore, is whether the defendant had power to make the amendment of 1901, striking out all time limit as to suicide, so as to be binding upon the deceased and his beneficiary, the plaintiff.

The law of this state is well settled that the defendant had no power to make such an amendment so as to bind persons already insured and their beneficiaries. Parish v. N. Y. Produce Ex., 169 N. Y. 34, 61 N. E. 977, 56 L. R. A. 149; Weber v. S. T. of K. of M. of W., 172 N. Y. 490, 65 N. E. 258, 92 Am. St. Rep. 753; Langan v. S. C. A. L. of H., 174 N. Y. 266, 66 N. E. 932; Beach v. S. T. of K. of M. of W., 177 N. Y. 100, 69 N. E. 281. The Webber Case alone need be specially referred to. It was there held that the amendment by this defendant, hereinbefore referred to as made in 1897, changing the time limit as to suicide from one to five years, was ineffectual to bar a recovery upon a certificate issued before such amendment was made, when the suicide occurred more than one but less than five

years after the issue of the certificate. We quote from the opinion in that case, viz.:

"Unintentional self-destruction, whether due to insanity or accident, after the lapse of a year from the making of the contract, was as much insured against as death from typhoid fever or consumption, and an amendment to its by-laws providing that the death of an existing member from any of these causes should render the policy void would deprive the party of vested contract rights. An amendment which effects such a result, we have recently held, may not be made, because it is an unreasonable amendment destroying contract rights, instead of regulating the administration of the corporation and its membership within reasonable bounds"-citing the Parish Case, above.

If such an amendment could not be made, certainly one striking out all time limit could not be. That case is decisive as to the rights of the parties in this case.

We think there is no merit in the claim that the deceased consented to the amendment of 1901. He very likely did consent to the amendment of 1897 by surrendering his original certificates and taking a new one in place thereof in 1898 after that amendment had been made, but there is no more reason in this case than in the Webber Case for saying he consented to the amendment of 1901. It is true that in the Webber Case there was no finding that the deceased was sane when the amendment was made. There is such a finding as to deceased in this case. There was no finding in the Webber Case that deceased was insane at the time the amendment was made, and in the absence of such a finding the court must have assumed he was sane. Nor can it be said that he consented to the amendment because the representatives from his tent were in attendance when the amendment was made. The amendment being an unreasonable one as to the deceased, he could not have anticipated it would be made so as to affect his rights, and could not be held to have authorized the representatives of his tent to assent to the same.

The views herein expressed lead to the direction of judgment for the plaintiff for $2,000, with interest and costs. All concur.

(96 App. Div. 557.)

CAHILL V. CITY OF ROCHESTER.

(Supreme Court, Appellate Division, Fourth Department. July 6, 1904.) 1. MUNICIPAL CORPORATIONS DEFECTIVE SIDEWALKS - INJURIES - NOTICE

STATUTES-REPEAL.

Rochester City Charter (Laws 1880, p. 76, c. 14, § 218), requiring actual notice of defects in the sidewalks of such city in order to authorize a recovery for injuries sustained by reason thereof, was repealed by the White charter for cities of the second class (Laws 1898, p. 438, c. 182, § 461, as amended by Laws 1899, p. 1290, c. 581), dispensing with the necessity for actual notice in such actions in cities of the second class, and permitting the same to be maintained where the defect complained of had existed for such a length of time that the same should have been discovered and remedied in the exercise of reasonable care.

Appeal from Trial Term, Monroe County.

Action by Bernard Cahill against the city of Rochester. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Affirmed.