Bukofzer v. United States Grand Lodge of the Independent Order Sons of Benjamin

Majority

p. 653

Meyer Bukofzer, Resp’t, v. The United States Grand Lodge of the Independent Order Sons of Benjamin, App’lt.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

1. Benefit societies—Arrears.

Plaintiff’s dues to the defendant were paid up to December, 1887, and. nothing further became payable until March, 1888. A further sum became due in June, neither of which sums were paid until afler his wife’s death, which occurred in August, 1888. By defendant’s constitution a member loses his right to the benefit of the endowment fund if in arrears for six months at the time of his wife’s death. Held, that a person cannot be properly said to be in arrears unless the time for payment has come and gone, and that plaintiff was not six months in arrears at the time of his wife’s death.

2. Same—Remedy in case of disputes.

The provision of defendant’s constitution that in case of disputes the members shall exhaust their remedy in the order before resorting to a court of law, relates to controversies of members with one another within the order, and not to controversies with the order itsrif.

Appeal by the defendant from a judgment for the plaintiff entered upon a verdict directed by the court and from an order denying a motion for a new trial on the judges minutes.

Mitchel Levy, for app’lt; Herman Aaron, for resp’t.

The principal question in this case is whether the plaintiff was in arrears with his dues and assessments for a period of six months at the time of his wife’s death. If he was, he cannot maintain the action. His wife died on August 8, 1888. Up to December, 1887, all the plaintiff’s dues were paid in full, and nothing further became payable until March, 1888, when the plaintiff was required to pay five dollars dues and assessments.

p. 654

This amount, however, he did not pay until September, 1888, after the death of his wife. A further sum of five dollars for dues and assessments had become payable in June, 1888, and this also was paid by the plaintiff in September of the same year.

In behalf of the appellant it is insisted that the plaintiff is to be deemed in arrears for a period of six months because at the time when his wife died he owed the defendant organization ten dollars, being the dues and assessments for the six months beginning with January, 1888. But the constitution of the defendant does not say that a member shall lose the benefit of the endowment fund whenever he owes six months dues. That forfeiture is only to occur when he is in arrears for the prescribed period. A person cannot be properly said to be in arrears until the time of payment has come and gone; and the time when the plaintiff was required to pay did not come until March, 1888. He could not be six months in arrears until six months from that date; and as his wife died in less than six months from that date, he was not six months in arrears with his dues and assessments at the time of her death.

Hpon the conceded facts of the case it was not essential for the plaintiff to secure the approval or disapproval of his claim.by the executive and endowment committees of the defendant before beginning this action. The defendant, by the stipulation printed in the appeal book, waived all question as to the sufficiency of the notice of death or .of the plaintiff’s claim, and admitted that payment had been duly demanded. Hnder the circumstances it was the plain duty of the committees to approve and pay the claim, and their neglect to do so cannot debar the plaintiff from maintaining this suit. The provision in the fourth article of the constitution of the defendant to the effect that, in cases of dispute, “ the members shall exhaust their remedy in the order before resorting to a court of law,” relates not to controversies with the order itself, but to controversies of members with.one another within the order.

• The judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Barrett, J.—I agree that the judgment and order denying motion for new trial should be affirmed, with costs.