114 N.Y.S. 801 | N.Y. App. Term. | 1909
The defendant is a benefit society, and the action is brought to recover a so-called “ sick benefit ” under-provisions of its by-laws which read as follows:
“ In respect to their proportions, the allowances granted by the Society are to be divided as follows: -Each member shall be entitled to $7.00 a week for any ordinary sickness exceeding three days, np to a period of three months.”
The plaintiff testified that he was a member of the society and a ladies’ tailor by occupation; that on a day named he was bitten over the right eye by a dog; that the eye swelled and became black and blue; that he necessarily wore spectacles in his work, but was unable to wear them after the injury and could not work during the period for which he claimed to recover.
On cross-examination, the plaintiff testified that he was not in bed at all in consequence of the injury; that he could go around just, as though nothing had happened, except that he had something the matter with his eye, and that his general health was all right.
The defendant offered no testimony, but'moved to dismiss the complaint. Judgment was afterward rendered in its favor, and the plaintiff appeals.
While there is no dispute that the plaintiff was injured in the manner testified to by him, we do not think that he has brought himself within the provisions of the by-laws relating to benefits in cases of sickness. The injury in itself could not be described as sickness (Kelly v. Ancient Order of Hibernians, 9 Daly, 289); and it is clear, from the plaintiff’s testimony on cross-examination, that it did not produce illness or sickness.
The judgment should, therefore, be affirmed, with costs.
Gildeesleeve and Seabury, JJ., concur.
Judgment affirmed, with costs.