Falcone v. Societa Sarti Italiani Di Mutuo Soccorso, 30 Misc. 106

Falcone v. Societa Sarti Italiani Di Mutuo Soccorso

30 Misc. 106 | N.Y. App. Term. | 1899

MacLean, J.

Of what sort was the defendant association nowhere clearly appears. The plaintiff says that he was a mem*107her of it from its foundation, and that under the by-laws he was to get a “ sick benefit ” of a dollar a day while sick, and that he was sick ten days. Among the by-laws, there was also one which the plaintiff translated to the effect that “ whenever a sick member shall not have faith in the doctor of the society he can procure for himself any doctor he desires, but at his own expense. But if he wants to receive sick benefit he will have to notify within twenty-four hours the corresponding secretary, who can immediately notify the doctor of the society, who will then visit the sick member within eight hours, and if he finds that the member is sick he will leave with him a memorandum, and the association will not recognize any other certificate but that of the society. It would be useless for any member who has been sick to try to prove his sickness through the certificate of another doctor than that of the society, as the committee will not recognize the same.” "With this by-law the plaintiff neither complied nor attempted to comply, because, as he says, his illness was rush of blood to the head, and he could not at four" o’clock in the morning go and notify the society, and because, as his counsel says, the by-law is ■unreasonable, and, therefore, not obligatory. Neither of these excuses may prevail. It is nowhere suggested that the plaintiff’s inability to give notice lasted for the whole of the first twenty-four hours, much less for any one of the remaining nine days. The by-law does not appear to be an unreasonable precaution for the protection of the society. Moreover, the plaintiff can hardly he heard to say that the by-law is unreasonable, for, as a member from the foundation, he must have taken part in the adoption of the by-law originally or have given to it his assent upon joining the society at its outset, and because, too, he had recognized it himself, by sending the prescribed notification when sick on a former occasion. The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Freedman, P. J., and Leventritt, J., concur in result.

Judgment reversed and new trial granted, with costs to appellant to abide event.-