| N.Y. App. Term. | Jul 15, 1896
- It was stipulated on the trial that if the plaintiff made out a case that the deceased was a member in good standing- and subject to none of the liabilities imposed by the constitution, plaintiff was entitled to recover $140, which included $107 for death and funeral expenses, and $33 for sick benefits from November 1 to December 3, 1895, the date of death. Payment is; resisted under the thirty-eighth section of the constitution which reads: “Any member failing to pay his monthly dues and other dues for three months shall be considered in default, and, in case of illness, will not be entitled to the sick benefits. ' In case a member-
As the appellant puts it, the questions to be answered under this section are: (1) Did the corresponding secretary notify the deceased that he was in default? (2) If so, had he, at the time of such notice, been in default for three months for any dues or assessments? (3) Did he continue in default for a further period of two months after-such notice? This is correct except as to the second question. Under the section quoted it should be: “ Was the deceased, at the time of such notice, in default for three months -for dues and assessments? ” For the notice was not to be sent to a member unless indebted upon both accounts. The default of which he is to be notified after tMee months, as required by the second sentence of the section, is undoubtedly that mentioned in the preceding sentence, which is the failure to pay monthly dues and other dues for three months.
Benefits were forfeitable, therefore, if- a member failing to pay his monthly dues and other dues for three months should, after notice from the corresponding secretary, continue in default for two months thereafter. Notice from the corresponding secretary is thus made a .condition precedent to forfeiture, and this notice could not be given until a member were in. default for three months for the indebtedness specified. Defendant gave evidence of a notice sent to deceased on. July 18 and August 1, 1895, but these notices contained nothing as to default in payment -of monthly dues for the simple reason that the deceased had paid his dues to August 1, and nothing was due on that account at the time of the notices. It was not until October, 1895, that the notice required by section 38 of the constitution' could have been given to the deceased,. providing that he failed to pay Ms monthly dues for August, September and October. But no such notice was given and the' forfeiture of his rights was not effected. In September a tender was made by the plaintiff sufficient to pay' his' monthly dues for two months and something on account of his other indebtedness, which was refused,, and he was dropped from membership in October following* under the im
Judgment should he affirmed, with costs. Under this view of the plaintiff’s rights the exceptions as to rulings upon testimony are-immaterial and no ground for reversal is shown.
MoAdam and' Bischoff, JJ., concur.
Judgment affirmed, with costs.