& Co. and Mrs. Leslie. They claim payment for the goods sold by them to the plaintiffs. Mrs. Leslie claims payment of the draft drawn by the American Exchange upon the plaintiffs and accepted by them. Alcock & Co. therefore have nothing to litigate with her, and have no interest in her controversy with the plaintiffs. They are in any event, upon the facts alleged, entitled to payment for the goods purchased of them by the plaintiffs, and no litigation between them and her could in any way affect their rights to such payment.

If Mrs. Leslie claims precisely what is alleged in the complaint her claim is good for nothing, and she cannot recover upon the draft against these plaintiffs. If, however, as may be inferred, she in fact claims that she is a bona fide holder of the debt for value, then she can recover thereon against the plaintiffs, and if they should be compelled to pay her the amount of the draft they would still be liable to pay Alcock & Co. the price of the goods.

It is true that Alcock & Co. and Mrs. Leslie both claim the same amount of the plaintiffs, but the one claims it for goods sold and the other claims it upon a draft, and if the plaintiffs should pay the money into court would it be paid to apply upon the price of the goods or upon the draft?

Undoubtedly the plaintiffs are exposed to the hazard of paying the sum claimed of them twice. But that hazard does not spring out of their liability to pay Alcock & Co., but out of the question whether Mrs. Leslie is a bona fide holder of the draft for value; and whether she is or not is a matter solely between them and her.

If the two defendants were both claiming the money due upon the draft, or both claiming the money due for the price of the goods, the case would be different. But one defendant claims. payment for the goods and the other claims payment upon the draft, and payment of the one would be no defense to an action for the other.

We may imagine still another state of things. Suppose the plaintiffs claim, and are able to establish, that Alcock & Co. took the acceptance of the American Exchange in absolute payment for the goods sold to the plaintiffs. Then the only parties interested in that matter are the plaintiffs and Alcock & Co. Mrs. Leslie has no concern with it, and she and Alcock & Co. cannot be compelled to engage in a litigation over it. As has been stated, if she is a bona fide holder for value, her claim upon the draft cannot be defeated by showing payment for the goods. If she is not a bona fide holder for value, she cannot recover, as the sole purpose of the draft was to put the American Exchange in funds to pay the accepted draft of Alcock & Co., and it could not lawfully transfer the draft to her to apply upon a precedent debt.

For all these reasons, therefore, it is entirely clear that this is not a case for interpleader, and the judgment below should be affirmed, with costs.

All concur; RUGER, Ch. J., in result.

SOPHIE LUHRS, Resp't, v. ANNA LUHRS, substituted, etc., App'lt.'

(Court of Appeals, Filed October 28, 1890.)

John Luhrs, a member of the Knights of Honor, had designated his wife as the beneficiary to receive the insurance fund payable at his death. By the constitution a member might surrender his certificate by an endorsement upon it which should be forwarded by the reporter of his lodge to the supreme reporter, who should cancel it and issue a new one, payable as he might direct. Luhrs signed a surrender and direction that a new certificate issue for the benefit of his sister; it was attested by the reporter of his lodge and mailed to the supreme reporter on the 10th of March, on which day Luhrs died. On the 12th the supreme lodge canceled the old and issued the new certificate, but the printed acceptance on the new was of course not signed by Luhrs. Held, that the sister, the beneficiary named in the new certificate, was entitled to the fund. 2. SAME.

Such written endorsement of a surrender of the certificate and the written direction thereon to issue a new one to a new and proper beneficiary, followed by an actual and manual surrender of the old certificate to the acknowledged and authorized agent of the Supreme Lodge, was equivalent, for the purpose of acquiring rights under the new certificate, to an actual delivery of the surrendered policy to the Supreme Lodge and a formal cancellation thereof by it.

3. SAME.

The old certificate was canceled when it was properly surrendered by a writing to that effect signed by the member and endorsed thereon, and the certificate itself actually placed in the custody of the authorized agent of the principal.

APPEAL from judgment of the supreme court, general term, first department, granting order for new trial upon exceptions of plaintiff.

Daniel Cameron, for app'lt; Alfred Steckler, for resp't.

PECKHAM, J.-The facts in this case are undisputed and are substantially as follows:

John Lulirs, in the year 1881, became a member of the Supreme Lodge, Knights of Honor, a charitable organization of the state of Kentucky, doing business in New York state. It had a branch lodge in the city of Brooklyn and he joined that lodge. He received a certificate from the Supreme Lodge by which it was promised that if he should comply with all the rules and regulations of the Supreme Lodge and should be in good standing at the time of his death, the Supreme Lodge would pay to such member or members of his family, or person or persons dependent upon him, as he should direct or designate by name, a sum not to exceed $2,000 as provided by general law. He designated his wife as the beneficiary, and the certificate which he originally received from the Supreme Lodge, and which was dated on the 22d of September, 1882, contained her name as such. In the constitution of the organization it is provided that every lodge shall forward to the supreme reporter all applications for membership and that each application shall have the name of the persons to whom the ben

efit is to be paid inserted therein, and where more than one certificate is issued, the beneficiary named in the last shall alone be entitled to the benefit.

It is further provided in the constitution that a member desiring to change his beneficiary may at any time while in good standing surrender to his lodge his benefit certificate, which, together with a fee of fifty cents, shall be forwarded by the reporter of his lodge to the supreme reporter, who shall thereupon cancel the certificate and issue a new one in lieu thereof to such member, payable as he shall have directed, within the limitations prescribed by the laws of the order; said surrender and direction to be made on the back of the benefit certificate surrendered, signed by the member and attested by the reporter of the lodge.

On the 8th day of March, 1887, while Luhrs was a member in good standing, an endorsement was made upon the certificate which had been issued to him, and which contained the name of his wife as the beneficiary, and such endorsement was in the following words: "I hereby surrender to the Supreme Lodge, Knights of Honor, the within benefit certificate, and direct that a new one be issued to me, payable to my sister, Anna Luhrs." At the end of this endorsement John Luhrs signed his name on the same day. The certificate thus endorsed and signed was then placed in an envelope and sent to Edward Cook, who was the reporter of the Brooklyn lodge, and it was received by him on the 9th of March, and the words "Attest, Edward Cook, reporter,' were placed, together with the seal of the lodge, on the certificate at the end of the endorsement. The reporter, Cook, sent the certificate thus endorsed by mail to the Supreme Lodge at St. Louis on the morning of the 10th of March. It does not appear in the case that any question was raised upon the trial that the sister, Anna Luhrs, was not a person dependent upon her brother, within the meaning of the constitution and by-laws of the organization, and I think it can be assumed that she was, and was so regarded upon the trial. She was with her brother at the time he died, and no one else was, and he died on the 10th of March, 1887.

The certificate thus forwarded to the Supreme Lodge at St. Louis was received at the home office on the 12th of March, and on that day it was formally cancelled, and another certificate with the name of Anna Luhrs as the beneficiary, and signed by the supreme dictator and supreme reporter, was sent from the St. Louis office. At the end of the old and new certificates the words "I accept this certificate upon the condition herein named" were printed, and at the bottom of such acceptance on the old certificate John Luhrs had signed his name. Of course there was no signature of his attached to the new certificate, nor does it appear that this written acceptance was called for by the constitution or by any by-law of the association. The Supreme Lodge kept the old certificate thus cancelled as the authority for the issuing of another.

After the death of John Luhrs, his sister Anna made a demand upon the Supreme Lodge for the payment to her of the $2,000 N. Y. STATE REP., VOL. XXXIII.

87

mentioned in the second certificate. The plaintiff, the widow of the deceased, also demanded of the Supreme Lodge the payment of the $2,000 mentioned in the first certificate. The Supreme Lodge acknowledged an obligation to pay to one or the other of the parties, but not to both. The widow, therefore, commenced an action against the Supreme Lodge to recover the amount named in her certificate, and upon motion the defendant Anna Luhrs, the sister, was substituted as defendant in place of the Supreme Lodge, which deposited the money in court to await its order as to the proper disposition of such sum, and the Supreme Lodge was, therefore, discharged from further liability in the matter. By this equitable proceeding the widow and the sister of the deceased have been brought together to litigate the question which of them has the better right to the fund in question. Upon the trial the court directed a verdict in favor of the defendant. Upon appeal, the general term reversed the judgment entered upon such verdict and granted a new trial. The general term held that there had never been a valid and completed change of certificates within the lifetime of the deceased, and that hence the widow was entitled to the sum. The defendant has appealed to this court from the order reversing the judg ment entered in her favor and granting a new trial, and has given the usual stipulation for judgment absolute against her in case such order be affirmed.

The question is not at all one which is free from doubt, and about all that can be said in favor of either view has been said by the learned judges who have written at the special and general terms. Upon the whole, and with some hesitation, we are inclined to favor the opinion pronounced at the special term, and to hold that the sister, the beneficiary named in the new certificate, is entitled to the fund.

The deceased had expressed his desire in the premises as fully as it was possible for him to do. He had himself complied with all the requirements imposed by the Supreme Lodge as necessary for him to perform in order to obtain another certificate. He had directed in writing to whom he wished the certificate payable, and he had surrendered his old certificate to the authorized agent of the Supreme Lodge, which agent had accepted such surrender, and attested it by the signature of its reporter and the seal of the lodge.

The person designated as the new beneficiary was one of those mentioned in the by-laws of the organization as a proper person to be named as such, and there was no discretion resting in the officers of the Supreme Lodge to refuse to issue a new certificate in accordance with the direction of the deceased, upon receipt of the old one. If the old certificate had been actually surrendered into the hands of an officer of the Supreme Lodge, and it had been by him cancelled before the death of the deceased, although the new one was not issued in accordance with his direction until after his death, would it not properly be held that the issuing of the new certificate was under such facts a purely formal matter; a mere written evidence of the fact which was in reality consum

mated by the surrender and cancellation of the old certificate? The cancellation must follow the surrender if the surrender has been properly made, and the new certificate must issue in accordance with the directions of the member, if the beneficiary be one of that class named in the by-laws.

The question is whether the valid and proper direction of the member shall be complied with when he has done everything that was required of him to do in order to effectuate his intention, and all that remains to be done is a purely formal piece of business and one in the doing of which there is not (upon the facts in this case) one particle of discretion remaining in the officers of the Supreme Lodge, or in any other body. Is not this written endorsement of a surrender of the certificate, and the written direction thereon, to issue a new one to a new and proper beneficiary, followed by an actual and manual surrender of the old certificate to the acknowledged and authorized agent of the Supreme Lodge, equivalent, for the purpose of acquiring rights under the new certificate, to an actual delivery of the surrendered policy by the agent to the Supreme Lodge, and a formal cancellation thereof by it? May not the old one be regarded as in law cancelled when it is properly surrendered by a writing to that effect signed by the member and endorsed thereon, and the certificate itself actually placed in the custody of the authorized agent of the principal? We think in this case these questions may fairly be answered in the affirmative.

The Supreme Lodge acted upon the surrender and did cancel the certificate, and did in fact issue the new one as directed by the member, and does not now deny the legality of the surrender or make any claim that it was not effectual. The only trouble is, that when it formally acted in accordance with the valid direction of the deceased and did what ordinarily upon the facts of the case it would have been bound to do, the member was dead. We do not think that the decease should, upon these conceded facts, operate to prevent the consummation of the surrender and cancellation.

After

It is said that until the actual cancellation by the Supreme Lodge there might be a recall of such surrender by the member. Possibly there might be, but there was none in this case. cancellation the member might also ask for another certificate containing the same name as the old one. In other words, the member might change his mind. But, as already stated, in this case he did not.

Feeling as we do that the surrender of the old certificate and the designation of a proper beneficiary, in the manner and under the circumstances described in the evidence herein, amounted to a surrender and cancellation by the Supreme Lodge, we think the subsequent issuing of a new certificate designating a new beneficiary as directed by the member may be held to relate back to the time of the original surrender to the agent of the Supreme Lodge. Although upon the face of the certificate there was this printed form: "I accept this certificate upon the condition herein named," and place left for the signature of the member, yet it does not ap