People ex rel. Crowley v. Supreme Council — 23 Abb. N. Cas. 323

Majority

p. 323

PEOPLE ex rel. CROWLEY v. SUPREME COUNCIL, CATHOLIC BENEVOLENT LEGION.

N. Y. Supreme Court, First District, Special Term;

June, 1889.

Headnote

¡1. Benefit societies; illegal suspension of member.} The suspension of a member of a benevolent society under a provision of its constitution—providing for a suspension of a member failing to pay an assessment levied by the society within forty days after the date of the notice of the assessment—is illegal, where the notice has not been served upon the member.

'2. Same ; illegal suspension of subordmate body of a benevolent order.} Where a subordinate body of a benevolent order is illegally suspended, the supreme body cannot impose as a condition of reinstatement, a new medical examination of the members of the suspended body.

•8. Same ; mandamus to reinstate.} An illegally suspended member of a benevolent society is entitled to peremptory mandamus to compel his reinstatement.

Application for a peremptory mandamus.

The relator, Dennis J. Crowley, instituted mandamus proceedings against the supreme council, Catholic Benevolent Legion, to compel his reinstatement as a member of one •of the subordinate' councils of the defendant.

The defendant is a benevolent society authorized to do a life insurance business in the State of New York and composed of three branches, supreme council, state councils, and subordinate councils. The relator was a member of a subordinate council.

Under the constitution and by-laws of the defendant it was made the duty of the assessment collector of the subordinate council, upon the receipt of notice from the supreme •council that an assessment had been called, to at once notify

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every member liable to assessment. The provision of the constitution was as follows:

iC This assessment notice shall bear the official stamp of the collector or the seal of the council and shall, in substance,, be in accordance with the form prescribed by the supreme council, and its date shall be the same as that of the notice-, received from the supreme secretary. Each member shall pay the amount due within forty days from the date of said-' notice. Any member failing to pay such assessment within forty days shall stand suspended from the council.”

The collector of the relator’s subordinate council having failed to perform his duties, attend the meetings and send notices to members, the subordinate council became in arrears to the supreme council for dues and assessments. Investigations were ordered by the supreme council, which resulted in the report that the sum of $66 was due from the subordinate council to the supreme council. Such amount was immediately paid over by the treasurer of the subordinate council to the treasurer of the supreme council and' receipt duly obtained. After the receipt of the money, the-supreme council suspended the subordinate council, claiming that upon the investigations made, the members had failed-to pay to the collector the amounts of the various assessments, and that thereby they had become suspended from the council.

As a condition for reinstatement of the council, the supreme council directed that all the members should attend before a medical examiner for examination as to their physical health, and upon such examination the relator was-rejected.

A trial of the mandamus proceedings instituted by the-relator was had, and it was shown that the relator had received only two notices of assessment, and that he had paid the amount of such assessments within forty days from their date, and that the collector failed to serve any other notice of assessment.

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George C. Lay, for the relator.

John C. McGuire, for the defendant.

The question here is whether the relator was suspended from membership, ipso faeto, because of the non-payment of an assessment within forty days from the •date of the call. In my judgment he was not. Under the laws governing the respondent (ch. 1, § 10) the relator was •entitled to notice of the assessment; and, upon well settled .principles, there could be no forfeiture without such notice. It is contended that the respondent (the supreme council) was only bound to notify the subordinate council (of which the relator was a member) of the calling of the assessment; and that the member is thereupon bound, under pain of forfeiture, to pay his share within the specified period, whether he receives notice from the collector of his subordinate council •or not. This is not a fair or just construction of the section in question. The notice provided for in this section, to be .given by the collector of the subordinate council to the member, is part of the respondent’s original law. The member has a right to rely upon the due execution of the provision therein incorporated, and upon the performance, by the designated official, of the duty thus imposed upon him. Even the form of the notice is prescribed by the ¡supreme council, and the member is to pay his share of the assessment within forty days from the date of this notice. "The latter provision plainly implies the actual possession of the notice by the member; else how is lie to know the date ? By the wording of the section, the member must pay within forty days from the date of the notice to be given by the •collector. The respondent claims that the member must so pay (or stand suspended) even if the collector, after preparing and dating the notice, should put it in his pocket or lock it up. The forty days, on this theory, runs from the date of the undelivered paper. Of course, this will not answer.

The contention that the forty days runs from the date of

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the original notice, given by the supreme to the subordinate-council, is equally untenable. That notice has no bearing upon the relations of the individual member to the subordinate council; nor indeed upon his relations to the supreme council, further than as he is a component part of the subordinate council. It bears only upon the relations of the-subordinate council to the supreme council; and provision is expressly made in section nine, subdivision two, for the consequences to such subordinate council of non-compliance-with the call.

It is conceded that the subordinate council was not suspended because of the non-payment by it of the assessment called by the supreme council.

Nor could it have been so suspended in view of the receipt by the supreme council of the $66, ascertained upon full investigation to be the entire amount due. The subordinate council was therefore, in the view above taken of" the rights of members, illegally suspended. For the members complained of were not in bad standing. They never “ stood suspended ” under the constitution and laws of the respondent; and the requirement with regard to a further medical examination was unauthorized.

It follows that the relator is and has been throughout a> member in good standing, and that he is entitled to the peremptory mandamus asked.

Judgment for the relator accordingly, with costs.