Fannie Markey, as Administratrix, etc., of Joseph P. Markey, Deceased, Appellant, v. The Supreme Council, Catholic Benevolent Legion, Respondent

Fannie Markey, as Administratrix, etc., of Joseph P. Markey, Deceased, Appellant, v. The Supreme Council, Catholic Benevolent Legion, Respondent. Mutual benefit association—a benefit certificate, ultra vires because in favor of a brother, is not enforcible by the administratrix of the member. The objection that a mutual benefit association had no power, under its constitution-, to make a benefit certificate issued to a deceased member payable to his ■ brother, is not available to the deceased member’s administratrix, and does not entitle her to recover from the association the amount stated in the certificate. • Appeal by the plaintiff, Fannie Markey, as administratrix, etc., of Joseph P. Markey, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of New York on the 19th day of November, 1901, upon the decision of the court, rendered after a trial at the New York. Special Term, sustaining the defendant’s demurrer to the complaint. The action was brought to recover the amount of a benefit certificate issued by the defendant to Joseph P. Markey. Charles Haldane, for the appellant. Edwin C. Low, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: - If -it be true, as urged by the appellant, that the defendant had no authority, under its constitution, to make the certificate issued upon the life of Joseph P. Markey payable to the brother, Edward J. Markey; it does not follow that the plaintiff can, by reason of ' that fact; recover the amount stated in the certificate. - If the defendant’s act in issuing the certificate was ultra vires the plaintiff cannot take advantage of it, inasmuch as she has no certificate at all, and comes into court without the basis of any claim whatever. (Luhrs v. Supreme Lodge Knights & Ladies of Honor, 27 N. Y. St. Repr. 88.) But the precise question here presented- was determined adversely to the plaintiff’s contention in Maguire v. Maguire (59 App. Div. 143), and, therefore, upon that authority, this judgment must be affirmed. Judgment affirmed, with costs. Present—Van Brunt, P. J., Ingraham, McLaughlin, Hatch and Laüghlin, JJ. Judgment-affirmed, with costs.