179 A.D. 211 | N.Y. App. Div. | 1917
Plaintiff sued to recover a benefit of $500 payable upon his retirement from the police department. Defendant was organized under the Membership Corporations Law on July 31, 1907, and on December 1, 1907, plaintiff was admitted to membership. He paid dues and was continued as a member up to 1910. At that time, there being an upheaval and row in the society and a change of management, charges were served upon plaintiff and several other members complaining that at the time they joined they were ineligible under the society’s by-laws. After a hearing and trial the charges were sustained and plaintiff was dropped from membership, the society tendering back to plaintiff all of the money that he
The controversy turns upon a by-law as of December, 1907, when plaintiff was admitted to membership. Section 9 of the by-laws as then in existence, unless amended, as plaintiff claims, read as follows:
“Any patrolman of the New York City Police Force may apply for membership in this society any time within seventeen years after his appointment in the Department.”
As patrolmen are permitted to retire after twenty years of service, the time limit of this by-law is of obvious importance.
The case was tried before the court without a jury upon an agreed statement of facts. This agreed statement admitted that the constitution and by-laws of the society were as set forth in Exhibits B, C, D, E and F. Exhibit B purports to be the constitution and by-laws adopted July 17, 1907, and section 9, governing membership, is in the form above quoted. Exhibit C purports to be the constitution and by-laws adopted on the same date, and section 9 reads as follows:
“Any uniformed member except Matrons of the New York City Police Force may apply for membership in this Society any time within twelve years after his appointment in the Department.
“ The initiation fee shall be twenty-five cents and the dues twenty-five cents every alternate month.”
Exhibits D, E and F purport to be copies of the constitution in 1908 and in 1911, but the membership by-law as therein provided is of no consequence, being subsequent to plaintiff’s admission to membership. As it appeared without contradiction that at the time of plaintiff’s admission he had been a member of the police force for more than seventeen years, and as he was, therefore, ineligible, the learned trial justice correctly decided that the defendant’s officers, in accepting the plaintiff, violated a fundamental rule of the society and exceeded their powers, and, hence, as their acts did not bind the defendant, plaintiff never became a member of the society. After the submission of the agreed statement of facts, but prior
The by-laws do not state whether they may.be amended by a vote of the directors or by a vote of the directors and delegates or by a vote of the members. In the absence of any express authorization, the directors would not have the power to change any such fundamental law or rule of the society as governed eligibility to membership. One of the main purposes of the society was to obtain benefits or insurance, and a rule that so directly affected not only the likelihood of the benefits being ultimately paid, but affected also the number of assessments that would be likely to be called for, both of which considerations have direct relation to the eligibility rule, could be changed only on notice to the members of the society affected. The status of the “ delegates ” was not clearly defined in the early constitution, but it appears in later constitutions that delegates had the right to represent members of an entire precinct. Assuming that the delegates,
The order denying a motion for a new trial on the ground of newly-discovered evidence was right, as the evidence only tended to impeach one of the plaintiff’s witnesses.
The order denying the motion for a new trial on the ground of newly-discovered evidence is affirmed, with ten dollars
Clarke, P. J., Laughlin, Smith and Page, JJ., concurred.
Judgment reversed, with costs, and complaint dismissed, with costs. Order affirmed, with ten dollars costs and disbursements.