People ex rel. McQuien v. Theatrical Mechanical Ass'n — 29 N.Y. St. Rep. 105

Majority

p. 105

The People ex rel. Donald McQuien, App’lt, v. The Theatrical Mechanical Association, Resp’t.

(Supreme Court, General Term, First Department,

Filed January 24, 1890.)

Headnote

Benefit societies—Right to drop member from roll for non-payment OF DUES.

Under a by-law of a benefit society providing for the dropping of a member in case of a neglect to pay dues for a certain time after receiving notice of his indebtedness, the society has no right to drop a member unless he has received such notice. Mere proof that such notice was mailed to him properly addressed is not sufficient to authorize such action, especially where it is shown that he was absent from home at the time.

Appeal from order denying peremptory writ of mandamus.

Smith Tuttle, for app’lt; Howe & Hummel, for resp’t.

The respondent is a benefit society duly incorporated under the laws of this state. The appellant was a member of this society until July, 1888, when his name was dropped from the rolls of membership for non-payment of dues, and it is claimed in accordance with one of the by-laws of the association, which reads as follows:

Article II.

Section 5. That every member signing the articles of association receive one copy of the by-laws; in case he wants another he shall be charged thirty cents. Each member shall pay a month’s dues of fifty cents, and any member who shall refuse or neglect to pay all fines, dues or contributions quarterly, and who having been notified by the financial secretary of his indebtedness shall still neglect or refuse for sixty days after receiving said notice to cancel his indebtedness, the delinquent member’s name shall be dropped from the roll without further action by the association, and the president, at the close of each and every meeting, before adjournment, shall announce officially the names of such members erased from the books of the association on that date, for non-payment of dues and fines, and the amount of their indebtedness, and the recording secretary shall notify the parties so dropped of the fact at once.

The appellant claiming never to have received any notice to cancel his indebtedness made this motion for a mandamus to compel the respondents to reinstate him as a member. This motion

p. 106

was denied and from the order thereupon entered this appeal is taken.

The fact that the appellant was in arrears as to his dues and that the respondent had the right, and if compliance to its bylaws has been had was justified in dismissing him from membership, is admitted.

According to the by-laws the delinquent member has sixty days after receiving a notice of his delinquency to cancel the same. This language seems to be plain and explicit and the association therefore has no right to drop a member from the rolls unless he has received notice of his delinquency.

In an ordinary case the mailing of a proper notice duly addressed, postage prepaid, to the place of residence of a member would raise a presumption of its receipt, but m the case at bar it appears that the member was absent from the city of New York at the time of the mailing of the notice to his supposed address and consequently this presumption is rebutted and there is no evidence that he ever received the notice required by the by-laws referred to.

As the right of action of the respondent depended upon the fact that this notice had been received and as there is no proof that the appellant had received it, the dropping of the appellant from the roll of membership seems to have been unauthorized.

The appellant was therefore entitled to be reinstated and his motion should have been granted.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for mandamus granted.

Bradt and Daniels, JJ., concur.