27 N.Y.S. 44 | N.Y. Sup. Ct. | 1894
The action was first tried in the municipal court of Rochester, and, from the judgment there rendered for the plaintiffs, an appeal was taken to the county court. The action was brought to recover the amount standing to the credit of the plaintiffs on the books of the defendant association on the 18th day of March, 1891, on which day the plaintiffs filed with the association their notice of withdrawal of all their shares, with the dividends due thereon. The notice of withdrawal was filed under a provision of the articles of association of the defendant, as follows:
“Members not having received a loan may withdraw one or more of their shares from the association at any time by giving notice in writing to the board, and the liability to pay further dues, and the right to dividends, shall cease with the filing of such notice. Applications for withdrawal shall only be received in the regular order of business, and the principal theretofore paid on such share or shares shall be refunded'to such members as soon as the necessary funds are in the treasury. * * * Dividends shall not be paid to any member except upon the final withdrawal of all his shares.” Article 14, § 2.
The plaintiffs had never had a loan from the association; and, having given notice of the final withdrawal of all their shares, they were entitled to receive, with the principal paid on such shares, the dividends due or declared thereon down to the filing of their notice of withdrawal. The amount then standing to the credit of the plaintiffs, including dividends, was the sum of $771.25, for which sum, with interest, judgment was rendered in their favor. It seems apparent that the single test of the plaintiffs’ right to be paid the amount then standing to their credit, and, consequently, their right to recover in this action, is the question whether, at any time after the filing of their notice of withdrawal, and before the commencement of the action, there were the necessary funds in the treasury of the association to make such payment. Of course, applications for withdrawal were entitled to be honored in the order of their filing, and the necessary expenses of conducting the business of the association must have precedence of payment over any such application. But .the undisputed evidence in the case establishes the fact (which is found by the court) that over and above all such previous applications, and the actual expenses of the association during the interval mentioned, there was a balance of moneys, received in the regular course of business, more than sufficient to pay the amount due to the plaintiffs. But the proofs also