Kristt v. Whelan

Rabin, J. (dissenting in part).

I dissent and vote to modify the judgment by reducing it to a sum equivalent to the balance standing to the credit of the plaintiff at the time of the adoption of the amendment in 1948.

Concededly, the trust was created for the benefit of the employees, and it was, as stated in Gearns v. Commercial Cable Co. (293 N. Y. 105, 113): “ to urge him to work steadily, by holding out to him some hope of freedom from want in the not unlikely event of a wearing-out of his own vigor through his day by day part in the defendant’s business.” The ‘‘ bank book ” given to the plaintiff in this case, showing his increasing balance in the fund year by year, states as one of the objects of the trust plan that “ [i]t enables us to further reward faithful service and to provide protection for the future,”

There is no question but that the company reserved the right to amend the plan. However, this right to amend was not unfettered to a point where the company could by amendment take away any interest a beneficiary had already acquired in the fund prior to the actual vesting of the money due him as the majority holds. It was a qualified right. It was limited to such amendment as would not “ divest any beneficiary of his interest in the Trust fund held for his benefit.” That amendment was written in this limited manner for the protection of the beneficiaries of the trust. If we were to hold that the word “ divest” applied only to his interest when it became vested under the Trust indenture, then the limitation clause is mere surplusage. The beneficiary would need no protection in such case because when the money, as distinguished from his interest in the fund, vested under the terms of the trust, no amendment could take it away from him. It would be his absolute.

The clause should be construed so as to give it some necessary meaning. The instrument having been written by the company, any doubt should be resolved in the favor of the plaintiff. In construing the word ‘ ‘ divest ’ ’, we must give it such meaning as would be understood by the employee in whose interest it was written. Construing it in that manner, the word “ divest” would mean “ to take away ”. It should be noted that the word “ vested ” does not appear before the word “ interest ” and it was, therefore, intended that the company be barred by the terms of the indenture from amending it so as to take away not only a vested interest, but any interest of the employee in the fund. And it may not be said that at the time this amendment was made the employee had no interest in this fund. To construe the limitation clause otherwise would make illusory all of the benefits set up in the interest of the employees. Thus, the number of ways in which the company could take away the rights of the employees would only be limited by the extent of one’s imagination.

The majority refers to the case of McNevin v. Solvay Process Co. (32 App. Div. 610, 612, affd. 167 N. Y. 530) where the court says: ‘‘ that none of the employees had a vested interest in any part of this fund * * * until the gift is completed by actual payment.” That case is to be distinguished. There, the trust at its very inception provided, as stated by the Appellate Division (p. 611), “that the funds shall be and remain the sole property of the defendant, and absolutely subject to the control of its trustees ”. In this case the funds which the company deposited could in no circumstances be retrieved or controlled. Clause 6 of the trust fund provides as follows: “6. Company has no interest in the Fund. Notwithstanding anything hereinbefore in this Article Two contained, or anything contained in any other article of this Indenture as now expressed, or as may hereafter be amended, it shall be impossible at any time prior to the satisfaction of all liabilities with respect to employees of this Company who are beneficiaries, and their beneficiaries, for any part of the corpus or income of the trusts hereby created, to be used for or diverted to purposes other than the exclusive benefit of such employees or their beneficiaries. ’ ’

Had the forfeiture amendment been written into the original trust there would be no question but that the violation of it would prevent the plaintiff from obtaining the money he seeks, because then he could have remained in the employ of the company subject to those conditions or not as he chose. Likewise he is not entitled to any money subsequent to the time of the amendment because then too he could have remained in the employ of the company subject to the provisions of the amendment or not, as he chose. However, having earned his interest in the fund before the amendment, it may not be taken away from him retroactively because the limitation in the right to amend, as I construe it, expressly prohibits it.

Accordingly, the judgment should be modified as indicated herein.

Breitel, J. P., Frank and Valente, JJ., concur with McNally, J.; Rabin, J., dissents in part and votes to modify in opinion.

Order on defendants’ appeal, the judgment for the plaintiff on the first cause of action is reversed and the said cause of action dismissed on the merits. On plaintiff’s appeal, the judgment is affirmed. Settle order on notice.