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.

which continued Griffith Evans as member of the Royal Arcanum.

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

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.

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.

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.

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.

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.

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,

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

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.

Insurance-de

cree to pay as

sessment-effect.

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. A contract of this character, once destroyed, 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

make such payments in case he were unsuccessful in the action.

I am also of the opinion that plaintiff, as his executrix, cannot maintain the action. She, as such, has no interest in its subject-matter. It is elementary executor

Action-party
plaintiff-execu- that

tor.

an

can maintain an action only when the subject-matter thereof affects the estate of his testator. Her testator had no interest in the proceeds of the certificate issued to him, and his estate had none. He was merely authorized to designate someone to receive the proceeds to be paid upon his death. He designated his wife, and the certificate issued to him provided that the society would pay to her, and not to his estate. If, at the time of his death, he had been a member in good standing, she personally would have been entitled to receive whatever the society paid. 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; Hellenberg v. District No. 1, I. O. B. B. 94 N. Y. 580; Bown v. Supreme Council, C. M. B. A. 33 Hun, 263; Holland v. Taylor, 111 Ind. 121, 12 N. E. 116; Stephenson v. Stephenson, 64 Iowa, 534, 21 N. W. 19; Daniels v. Pratt, 143 Mass. 216, 10 N. E. 166; Kentucky Masonic Mut. L. Ins. Co. v. Miller, 13 Bush, 489; McClure v. Johnson, 56 Iowa, 620, 10 N. W. 217; Maryland Mut. Ben. Soc. v. Clendinen, 44 Md. 429, 22 Am. Rep. 52. Costs in an equity action are not a part of or in any way connected with the subject-matter of it. They are mere incidents of the litigation. Crosby v. Stephan, 97 N. Y. 606; Eastburn v. Kirk, 2

Johns. Ch. 317.

My conclusion, therefore, is that the judgments of the Appellate Division and Special Term should be reversed, and the complaint dismissed, with costs in all courts.

Hiscock, Ch. J., and Cuddeback and Andrews, JJ., concur with Mc

Laughlin, J., and Cardozo, J., concurs in result.

Crane, J., dissenting:

The opinion in this case makes the injunction order granted by the and a nugatory process. supreme court a useless formality I cannot

agree that the injunction, which concededly restrained the officers from expelling Griffith Evans from the Royal Arcanum for the alleged nonpayment of dues, was useless and a vain and empty effort upon the part of the court to preserve his rights. The officers and the organization were restrained, but a by-law or contract of the member, it is said, nullify the injunction. was so passively effective as to

Griffith Evans was a member of Rome Council, No. 150, of the Royal Arcanum. He was sixty-five years of age, and had paid dues for over twenty-five years. The organization had increased his dues from $1.86 to $3.44, and then to $6.33, a month, and finally, when he became sixty-five years of age, to $16.08 a month. This action had been held illegal by our court. Green v. Supreme Council, R. A. 206 N. Y. 591, 100 N. E. 411. He tendered in payment of his dues the amount which the courts had determined was all that could be demanded. The tender being refused, and threatened with expulsion, he resorted to the courts for determination of the controversy. The supreme court, upon his application, granted an injunction reading as follows: "Ordered, that the above-named defendants, their officers, agents, attorneys other persons be, and each and all and employees, and any and all of them are hereby enjoined, restrained and prohibited from suspending the plaintiff, as a member of the defendants, and from in any manner interfering with his rights. and privileges in said Supreme Council of the Royal Arcanum, or in said Rome Council, No. 150, of the Royal Arcanum, until the further order of this court."

A bond was given to accompany