Wachtel v. Noah Widows & Orphans' Benevolent Society

Majority

p. 424

COURT OF APPEALS.

Rosa Wachtel, administratrix, &c., respondent, agt. The Noah Widows and Orphans’ Benevolent Society, appellants.

Headnote

Benevolent society—Benefits—Bhpulsion of member.

An association whose members become entitled to privileges or rights of property therein, cannot exercise its power of expulsion without notice to the person charged, or without giving him an opportunity of being heard. The service of notice, in the absence of any agreement to the contrary or any provision in the charter or by-laws controlling the same, must be made personally.

Decided February, 1881.

Appeal from an order .of the general term of the court of common pleas, affirming a judgment entered upon the. verdict of a jury in favor of the plaintiff for $560, with interest and costs; the $500 being a benefit or gratuity which the defendants agreed to pay upon the decease of a member in good standing upon their books, and the sixty dollars being a sum which they agreed to pay in addition thereto as funeral expenses, both sums being payable to the legal representatives of the deceased. The by-laws of the association were changed during the absence of the deceased from the city, and under these amendments the deceased, shortly before his decease, was expelled. No notice of the meetings at which the by-laws were amended or the ■ deceased expelled were given, although an effort to make the service was made. The sufficiency of the efforts was, however, disputed. The defendants appealed to the court of appeals.

Abram J. Dittenhoeffer, for appellant.

F. Kwrzmcm, for respondent.

It is well settled that an association whose members become entitled to privileges or rights of property therein, cannot exercise its power of expulsión without notice to the person charged, or without giving him an opportunity to be heard (Ang. & Ames on Corp., sec. 420; Bartlett agt. Med. Soc., 72 N. Y., 187 ; Com. agt. Penn. Ben. Ins., 2 Surg. & R., 141; Innes agt. Wylie, 1 C. & K., 257). This general rule of law is recognized by the defendant’s 'by-law as applicable to one who, from any cause, should fail to pay his.monthly contribution. It is in these words: “ The financial secretary shall give to each member who is six months in arrears a written notice, calling his attention to the fact that he shall be stricken from the roll in case he does not pay his dues in thirty days.” It is admitted that the deceased was in arrears, but it is established as a fact that the notice provided for in such a case was not given to him. It is said, however, by "the learned counsel for the appellant that this omission was caused by the failure of the deceased to give notice to the association of his change of residence. It does not appear that he was under any obligation to do so. At the time he became a member of the society he notified it that his then place of residence was 41 First street, in the city of ISTew York, but he subsequently removed to East Eighteenth street. There is nothing to show that the object of the information as to residence was to enable the defendant to serve its notices at that place, or that the deceased agreed that they might be left at his house. There are many other reasons why it would be well for such an association to know the residence of its members; but however that may be, the defendant, by another by-law, defined the penalty for neglect in giving notice of a change of residence. It declares that for such omission the member in default shall incur a fine of twenty-five cents. It would lead to an unjust result if there should be added to it a forfeiture of the whole benefit to which his representatives are, in case of his death, entitled. Such consequence is not declared and

p. 426

cannot be implied by any legal construction. In the absence of any agreement by the members, or any provision in the charter or by-laws, for a different mode of service, it should be made personally, as required at common law, when the object is to deprive a party of his rights or property, or if that can be dispensed with, then in such other mode as will be most likely to effect its object. There then was no service, and the court has found that its omission is not excused. This conclusion is well warranted by the facts found, and the judgment should be affirmed.

All concur.