43 Misc. 338 | N.Y. App. Term. | 1904
The amount involved in this action is small, the plaintiff claiming only sixty-three dollars, but the question presented is one of quite general interest and must have arisen frequently before, though this seems to be the first time it has been brought to court for decision, either in this or any other State.
The facts are presented in an agreed statement and are as follows: The plaintiff is an incorporated club of which the defendant was a member. Prior to May 1, 1902, the dues of the club were twenty-four dollars per year, payable semi-annually on the first days of May and ¡November. After May 1, 1902, the dues were increased to thirty-four dollars per year, payable semi-annually on the same dates as before. In 1901 the defendant fell into arrears, not having paid the semi-annual dues of twelve dollars on ¡November first of that year. Several times thereafter, he was notified by the plaintiff of this indebtedness, and finally, in March, 1902, he received a further statement of his indebtedness to the club with the following notice written thereon in red inik: “If this account is not paid on or before the day of , 1902 (which date was prior to May 1, 1902), you will be dropped from the club without further notice.” The defendant made no answer to this and never formally resigned from the club. The following are extracts from the plaintiff’s by-laws: “ Article III, Section 8. ¡No resignation of a member shall be accepted until he shall have discharged his entire indebtedness to the club.” Article VI, Section 4. “A member desiring to withdraw from the Olub must signify his intention in writing to the Hon. Secretary before the first day of May or ¡November, as the case may be, otherwise he shall be liable to pay his semi-annual dues for the succeeding half year.” Article VIII, Section 2. “ The name of any member, who shall fail to pay any fine which may be imposed upon him, or whose dues ledger or house charges shall be in
“.That the Club did not drop defendant’s name from its said roll, that from the first day of November, 1901, to the first day of November, 1903, plaintiff has at all times treated the defendant as a member of said Club, has so considered him, and from time to time during said period, has sent defendant a statement showing the balance due, according to the books of the Club up to the date of such statement, the last statement showing a balance due plaintiff from defendant of $63.00. None of said notices were returned by defendant.” The defendant concedes he is liable for twelve dollars, with interest from November 1, 1901, while the plaintiff claims sixty-three dollars principal and five dollars and thirty-eight cents interest.
Under the terms of the contract between the parties, as set forth in the above provisions of the by-laws, the defendant of his own act, independent of any act of the club, could sever his membership and escape liability for further dues only by paying his entire indebtedness to date and by presenting his resignation. Until he should do these two things, the club could hold him for the regular dues, whether he availed himself of its privileges or not. The club, on the other hand, when a member fell into arrears, had an option either to drop him from its rolls in the manner provided, in
Our view that the defendant’s membership was not terminated by the mere fact of his delinquency and without any act of the board is in accordance with the decision made in Medical & Surgical Society v. Weatherly, 75 Ala. 248. La that case the by-laws provided that the first regular meeting in April should be a meeting for the revision of the roll, at which time the treasurer should report the names of all delinquent members and that at that meeting all such names should be immediately dropped or stricken from the rolls. It was held that such action at a subsequent meeting in dropping the relator was in the absence of notice, actual or constructive, to him unwarranted and he was reinstated by mandamus. ^
But, though the defendant’s membership and consequent rights and liabilities would not cease by the mere fact of his being in arrears, without more, but on the contrary, some act on the part of the plaintiff was necessary to accomplish that result, still we think the act of the club in sending the defendant notice that he would be dropped unless he paid the dues before the date named was a sufficient indication of its election and warranted him in assuming that the intention so declared had been followed by the proper resolution of the board of governors. That he was legally justified in making such assumption is the only finding necessary to make in
There can be no question but that the notice was sent by authority of the club. Neither can there be any question of the fact of the defendant’s reliance on such notice nor of his good faith in1 so relying, this being admitted by the seventh paragraph of the stipulation, above quoted.
It being thus admitted that the defendant in fact and in good faith assumed that he would, as notified, be- legally dropped from membership, it is difficult to perceive why he should not be held to have been “ legally justified in assuming that he had ceased to be a member of the Club, on and after the first day of May, 1902.” He was not bound to see to it that he was dropped from the roll of members by the board of governors in due form.
Therefore,' the judgment should be affirmed, but, under the terms of the stipulation, without costs.
Ebeedmajv, P. J., and' McCall, L, concur.
■Judgment affirmed, without costs.
