Majority
p. 541Emil Krakowski, Resp’t, v. The North New York Building and Loan Association, App’lt. (New York Common Pleas, General Term, Filed February 5, 1894.)
Headnote
1. Association—Articles.Where no provision is made in the articles of association for their amendment, an amended article is not binding upon a member by the force of its adoption alone.
2. Appeal—Finding.
A finding of the court, upon conflicting evidence, will not be disturbed on appeal.
3. Same—General objection.
An objection, which fails to set forth the grounds, is insufficient.
4. Same.
A general objection to the reception of evidence to be given by a witness is unavailing, in that it is anticipatory.
Appeal by the defendant from a judgment of the district court in the city of New York for the tenth judicial district, rendered by the justice thereof without a jury in favor of the plaintiff.
The nature of the action and the facts, so far as material, are stated in the opinion.
James G. DeLaMare, for appl’t; Fred G. Leubuscher, for resp’t.
This action was brought to recover the sum of ninety-nine dollars and ninety-nine cents alleged to have been unlawfully retained by the defendant as against the plaintiff at the time when the latter withdrew from such defendant association. The defendant sought to justify its retention of the sum in suit, as a forfeiture, under the provisions of certain “ amended articles of association.” The articles of association contained in the plaintiff’s pass-book, and to the terms of which he had assented, did not embody the rule under which such forfeiture is claimed,
p. 542
except in part and in that regard qualified by a provision as to the defendant’s having the funds for the loan pre-empted “ in bank.” It appears from the evidence that the defendant did not have such funds in bank during the period in question. In these “Articles of Association ” appears no provision for their amendment and therefore the “ amended articles ” could not be considered as binding upon the plaintiff by the force of their adoption alone. There was evidence sufficient to justify a finding on the part of a justice that the plaintiff was not made aware of the terms of the “ amended articles ” with reference to forfeitures, and this finding is not to be disturbed because of a conflict of evidence, in such a case as that before us. Weiss v. Strauss, 89 St. Rep., 78 ; Lynes v. Hickey, 4 Misc. Rep., 522 ; 54 St. Rep., 120 ; 24 N. Y. Supp., 731 . But two exceptions were taken by the appellant. They are not relied upon on this appeal, nor are they properly the subject of consideration. That appearing on page 7 of the record fails to set forth the grounds of the objection and is therefore insufficient. Malcolm v. Lyon, 46 St. Rep., 921 ; Riche v. Martin, 48 id., 751; Carroll v. O'Shea, 51 id., 579; Myers v. Cohen, 53 id., 223. The general objection to the reception of evidence to be given by the witness Brady, as an expert, is unavailing in that it was anticipatory, no offer of proof having been made. Re Morgan, 104 N. Y., 74 ; 5 St. Rep., 511 .
The judgment should be affirmed with costs.