SUPREME COUNCIL, CATHOLIC BENEVOLENT LEGION, v. GALLERY, 278 F. 500

ARSCHURER, Circuit Judge (after stating the facts as above). The contention is made that, the entering of the judgment for $1,079.91 and interest terminated the controversy, and that no subsequent judgment could be rendered in the action. The position is not tenable.

Section 55 of the Illinois Practice Act (Hurd’s Rev. St. 1919, c. 110) provides for entering judgment for such amount, if any, of a plaintiff’s claim as to. which no defense is shown by the affidavit of defense, leaving the suit thenceforth to proceed as to the part of the plaintiff’s demand in dispute.

While at the precise instant of the entry of the judgment the affidavit of defense had been stricken, it is apparent that the contemporaneous leave to file amended affidavit, followed- on same date by actual filing of it, is quite sufficient to characterize the entire proceeding as one falling within the statutory provision.

If the point had been raised at the time, and had been considered good,, the order for judgment would undoubtedly have been vacated, and an-' other judgment entered upon the filing of amended affidavit, in which defense to the entire action was not asserted, but only as to that portion of it beyond the $1,079.91. Throughout the proceedings subsequent to this judgment no suggestion of this contention appears, and there was in any case a waiver of it. Considerable discussion is presented by the briefs as to the right of fraternal benefit societies organized in New York to increase their rates.

This member definitely assented to the increase, and paid it from 1904 to his death, and so that question does not here arise. 1 The controlling proposition is as to the right of the Legion to charge these certificates with the reserve, as was for the first time undertaken in 1917. This proposition is one which is governed by the laws of New York, under which the society was chartered, and if the courts of that state have passed upon the question here involved, so that we are enabled to say what is the law of New York thereon, we must give effect thereto. Royal Arcanum v. Green, 237 U. S. 531, 35 Sup.

Ct. 724, 59 L. Ed. 1089, L. R. A. 1916A, 771. It appears that a like certificate of the society was in issue in the case of Schwemmer v. Supreme Council, Catholic Benevolent Legion, 187 App. Div. 673, 176 N. Y. Supp. 139, and from the statement and opinion there the facts are quite the same as those here. That-court held that, unless certain further facts appear (which are likewise absent in the case at bar), the action taken in 1917, to charge the old certificates only, was discriminatory and void, and reversed and remanded for new trial a judgment below in favor of the Region.

We find no further proceedings in that case. This was followed within a few months by the case of Kennedy v. Supreme Council, Catholic Benevolent Legion, 177 N. Y. Supp. 268, 188 App. Div. 613, wherein the Appellate Division considered a controversy in which there, as here, was involved the question of the right of the Region to so charge one of these same old certificates. In the interest of brevity we will not quote from the opinion. Suffice to say the court held that the Region had no power to charge the certificate as was undertaken, and it affirmed judgment for full amount of the certificate.

We can find nothing in the case at bar to distinguish it from the Kennedy Case. Indeed, the actuarial evidence offered in the case at bar was by stipulation read from the transcript of the record in the Kennedy Case. Upon appeal by the Region to the New York Court of Appeals, that court, on May 1, 1921, affirmed with costs the judgment in the Kennedy Case, filing no opinion. The case of Donaldson v. Supreme Council, Catholic Benevolent Legion, 180 N. Y.

Supp. 598, was an action in the New York Supreme Court, based on another one of these old certificates; the primary question being the right of the Legion to charge such reserve against it. The court in its opinion cited the Kennedy Case as authority for its conclusion against the right, and gave judgment in favor of the plaintiff in the action. We find no reported decisions of New York courts which conflict with those referred to, and in view of them we conclude it is the law of New York that certificates such as that here in issue may not be charged as was undertaken in 1917 to do.

The judgment of the District Court is affirmed.'