Opinion
January, 1898.
John A. Payne, for respondent.
Sidney J. Cowen, for appellant.
The defense to the plaintiff's action, brought to recover the amount of benefit accruing under the defendant's by-laws upon the death of her husband, a member, was based upon the provisions of one of the by-laws, expressed as follows: "Any member indebted to his local union for any sum equal to two months' dues shall be notified by the financial secretary, and when owing a sum equal to three months' dues shall be considered in arrears and will not be eligible to any benefits until three months after all the arrearages are paid in full."
The plaintiff's husband became indebted to his local union for three months' dues, and, while the arrearage was paid in full some ten days before his death, his status, when he died, would not have been that of a member in good standing, since the rule, as quoted, operated to reinstate him only after the expiration of three months from the date of the payment, unless the failure of the defendant's secretary to notify the member when an indebtedness of two months' dues existed had the effect of suspending the operation of the rule.
Waiving any other questions which might arise in the case, the appellant contends that the plaintiff's recovery was to be precluded by virtue of the terms of this by-law, taken with the conceded state of the member's account with the defendant, but, as we construe the contract, as evidenced by the by-laws, the result reached by the justice is to be sustained.
It is well settled that the words employed in by-laws, such as those governing the rights of these parties, are to be liberally construed in favor of the beneficiary, so far as may be necessary to a determination of what was understood by the latter to be their meaning, and we are led irresistibly to the conclusion that the notice provided for by this particular by-law, as reasonably interpreted, was to precede the imposition of the penalty for suffering the indebtedness to continue.
To say that the arrearage of three months' dues deprived the member of benefits, at once and at all events, and that the notice had exclusive application to the two months' indebtedness alone, would be, in effect, to withhold all meaning from the provision calling for the notice, since no penalty attached when the member was two months in arrears, and a notice of the fact would have no significance and would be entirely unnecessary, if intended to operate upon that situation alone. The only office of such a notice was, clearly, to apprise the member of some significant fact, and it is solely by viewing the notice as an intended warning that meaning can possibly be given to the by-law in its entirety.
It was shown, directly, that no written notice of his two months' indebtedness was sent to the plaintiff's husband, and if it be said that an oral notification was permissible as a compliance with the by-law, there was evidence from which the justice could have found that none such was properly given.
The defendant attempted to prove by the testimony of the witness Lounsbery, who had acted as its "financial secretary" during the period in question, that a verbal notice had been given to the deceased by the witness, personally, at the proper time, but the only notice thus shown, at about the time when the deceased was two months in arrears, was contained in the "financial secretary's" bare statement to him that he had better "square his account."
This certainly was not such a notice of the facts of the indebtedness as the by-laws contemplated, and it would appear, also, from the evidence that the words used by the witness were not well to be taken as an official expression, but were employed in the course of a friendly conversation and by way of advice.
It follows that the judgment, so far as it is assailed upon this appeal, should not be disturbed. Judgment affirmed, with costs.
DALY, P.J., and McADAM, J., concur.
Judgment affirmed, with costs.