Majority
p. 852Petrone Wajczeliunas, Appellant, v. Saint Peter’s Lithuanian Society, Respondent. Second Department, December 30, 1910.
Headnote
of membership in benevolent, society — burden of . notice insufficient to' terminate membership. . Insurance t- loss problC-TA benevolent insurance society defending a, suit by a beneficiary upon the ground . that the insured had lost' membership under the ternas of a by-law providing that a member in arrears for 'gispnonths who, after receiving word from the financial secretary in a registered I<3t$8Lxfails to pay at th| next monthly . meeting, i. e., the seventh month, will be crdS$ed off the list of members, is under the burden of showing that the required notfe was gives and received ■ by the member after he was in default for six months and that he failed to pay. at the meeting held in the month following.
A letter written by the financial secretary of such society asking a member to pay his quarterly dues before he has been in default for six mirths is not the notice required by the by-law, nor a basis for terminating his'mVmbership.
Appeal by the plaintiff, Petrone Wajczeliunas, from adjudgment of the Municipal Court of- the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 1st d&J of June, 1910, dismissing the complaint. . ' -\
Charles L. Fasullo, for the appellant.
Elias Rosenthal, for the respondent. . '
This action is to recover a death benefit from a benevolent society,. and the question presented is whether the deceased was a member in good standing at the time of his death, The defendant’s bydaws
p. 853
which formed part of the contract between it and its members, provides, among other things, that if a member fails to pay his dues for six months, “ and after receiving word from the Finance Secretary in a registered letter, fails, to pay at the next monthly meeting, i. e., the seventh month, will be crossed off the list of members. Only then, should an indebted member give some good reason why he could not pay his dues at the specified time, a prolongation, of payment may be granted.” It is upon this by-law that defendant relies to defeat plaintiff’s recovery. The defendant having based its defense upon the termination of membership of the deceased prior to his death, was bound to establish that the notice was given and received by the deceased after he was in default for six months’ dues, and that he failed to pay at the meeting held in the month following the receipt of such notice. There is no such evidence ' before us. The deceased became a member on April 3, 1909, at which time he paid his dues for that month. He was not in arrears six months until November first following, and it was not until.that time that the notice could be given. There'is no evidence that he éver received a. notice of any kind, and the only proof upon, that subject is the testimony of defendant’s financial secretary that in the month of July he sent a letter to the deceased to pay his July quarterly dues. At that time the deceased had been a member three months, and the letter, even if received by the deceased, was not the notice required by the by-law-, and furnished no legal foundation for the termination of his membership.
Without considering the other questions presented by the learned counsel for the appellant, it follows that the j’ndgment must be reversed and a new trial ordered, costs to abide the event.
Hirschberg, P. J., Woodward, Burr and Carr, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.