28 N.Y.S. 177 | N.Y. Sup. Ct. | 1894
The plaintiff’s son, Richard B. McGowan, became a member of the Holy Angels Branch, No. 7, of the defendant, and certificate of membership was issued to him May 7, 1888. It was to the effect that he was entitled to all the rights and privileges of membership in the defendant, and to participate in the beneficiary fund of the association to the amount of $2,000, which should, at his death, be paid to his mother, the plaintiff. The certificate, by its terms, was issued upon the condition that Richard B. McGowan should, in every particular, while a member, comply with all the laws, rules, and requirements of the association. The defendant was incorporated by chapter 496, Laws 1879, in which it was provided that the corporation should have power to make such constitution, by-laws, rules, and regulations as it should judge proper for regulating and fixing the amount and time of payment of all fees, dues, and funds of the corporation, and for its grand council and branches, and that they, respectively, as well as the defendant, should have the power of suspending any of its members (section 3);
The alleged defense is that Richard B. McGowan was in default in payment of assessment known as “Number 18,” made in January, 1892, and, as the consequence, was suspended from the rights of membership, and remained so at the time of his death. It appears that such an assessment was made, and that he became in default. The main question is whether, as against him, the assessment was legally made. This is matter of defense. It appears that it was the custom to keep the amount of an assessment in advance, so far as it was practicable to do it, so that, when a call from the grand lodge to pay beneficiaries on the death of members should be made, the branches could, without the delay attending the taking of the assessments made on account of such deaths, remit the amount, through the proper channel, to the depository of the defendant, for distribution among the beneficiaries. In practical effect, therefore, the payment of the assessments was a reimbursement of the respective branches preparatory to another call from the defendant for a like purpose. This method was permitted by the fact that, on initiation, each member was required to pay the branch in which he was received one beneficiary assessment. This initiation fee was paid by McGowan, and it may be assumed that he had paid all assessments made upon him prior to No. 18. The plaintiff challenges that one for the reason that he, by the payment of them, including that paid at the time of initiation, had already contributed an assessment to the payment of the beneficiaries on account of whom the call was made, and that he could not be legally assessed to contribute to a beneficiary fund which might be required by future deaths of members, because such an assessment was not within the provisions of his contract of membership. „ While it is true that be could not properly be assessed to pay the beneficiaries of members resulting from death which had not occurred, such in fact was not the assessment which the plaintiff seeks to repudiate. The constitution of the defendant provides that:
“The supreme recorder shall at the first of each month, or as soon thereafter as possible, issue one or two assessments, as may be required, to pay beneficiaries of deceased members then on record in his office, and shall notify the grand secretary of each grand council, and the recording secretary of each branch in his immediate jurisdiction, of the same. Said notice shall contain the name of the deceased members, the number and location of the branch, date of death, cause of death, date of initiation, amount of certificate, and shall also state the death, if any, upon said notice, that will be paid with surplus.” Section 7.
The proposition made by the plaintiff’s counsel, that inasmuch as the defendant, or the branch of which McGowan was a member, had sufficient funds to pay the assessment, he could not be chargeable with default prejudicial to his relation to the defendant, is not supported by the case of Knight v. Supreme Council (Sup.) 6 N. Y. Supp. 427, and Evarts v. Accident Ass’n (Sup.) 16 N. Y. Supp. 27. There the assured had paid assessments illegally made, and for which it was held they were entitled to credit, by way of relief from those for the nonpayment of which the defendant sought to charge them with default. In the present case, McGowan had paid such sums, only, as the contract represented by the constitution and by-laws required of him; and the assessment, in its purpose and effect, was legitimately made. The consequence, upon his relation as member, of default in payment of an assessment, is declared, and by the contract, as so represented, which provides that within 20 days after the date of the notice, which shall be mailed not later than 5 days after its date, each member must pay into the beneficiary fund of his branch the amount of the beneficiary assessment, as stated in the notice, and that, if the assessment is not paid before the time of the next meeting of the branch “after the expiration of said twenty days, he is hereby declared to be suspended from all the rights of the association, and, if a member die while suspended, he is not entitled to participate in the beneficiary fund.” Section 10. McGowan did not pay his assessment within the time prescribed, nor was it paid
The plaintiff offered to prove that it had been the custom of this branch of the defendant to receive assessments and dues after the expiration of the time designated in the constitution for payment; that such payments were made to the financial secretary after members had been suspended, and received outside the lodge, and wrere adopted and ratified by it; and that such members were not afterwards disfranchised of their rights in the lodge. And, to the exclusion of the evidence, exception was taken. The constitution provides for reinstatement of a suspended member, and how it may be done. The. evidence offered would not tend to