67 N.Y.S. 342 | N.Y. App. Div. | 1900
The action was brought against the defendant as a fraternal organization to recover the sum of $500 upon a certificate issued to one Schaie Circus, the husband of the plaintiff, by which the defendant agreed at his death to pay the amount named in the certificate to his widow. The defenses were, first, that the plaintiff was not the widow of Schaie Circus, and, secondly, that the subordinate lodge of which Circus was a member had been suspended before his death for the non-payment of dues, and that the effect of ' such suspension was to forfeit all benefits due to either him or his beneficiary under the certificate. The referee found for the plaintiff upon each question of fact raised by the answer, and ordered judgment for her. The question simply is whether the findings of the referee were correct.
It is conceded that the plaintiff, who is a Roumanian, had lived in that country with one Brenner and by him had four children; that she came to this country after having lived with liinl for seventeen years; that after she had been here for a year and a half she was followed by Brenner and lived with him again for about eighteen months, when he left her, and she had never seen or heard from him since. His desertion of her took place about' six years before her marriage to Circus.
But it is said that the subordinate lodge had withdrawn from the order and had, therefore, lost the benefits of its membership. That defense was not set up in the answer, nor was any such fact found by the referee, and that would seem to dispose of the contention, but an examination of the testimony shows, moreover, that whatever action of the sort took place was taken at an informal meeting of the members of the lodge and the conclusion was reached by
Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.
Judgment affirmed, with costs.