Opinion
December 30, 1910.
Charles L. Fasullo, for the appellant.
Elias Rosenthal, for the respondent.
This action is to recover a death benefit from a benevolent society, and the question presented is whether the deceased was a member in good standing at the time of his death. The defendant's by-laws which formed part of the contract between it and its members, provides, among other things, that if a member fails to pay his dues for six months, "and after receiving word from the Finance Secretary in a registered letter, fails to pay at the next monthly meeting, i.e., the seventh month, will be crossed off the list of members. Only then, should an indebted member give some good reason why he could not pay his dues at the specified time, a prolongation of payment may be granted." It is upon this by-law that defendant relies to defeat plaintiff's recovery. The defendant having based its defense upon the termination of membership of the deceased prior to his death, was bound to establish that the notice was given and received by the deceased after he was in default for six months' dues, and that he failed to pay at the meeting held in the month following the receipt of such notice. There is no such evidence before us. The deceased became a member on April 3, 1909, at which time he paid his dues for that month. He was not in arrears six months until November first following, and it was not until that time that the notice could be given. There is no evidence that he ever received a notice of any kind, and the only proof upon that subject is the testimony of defendant's financial secretary that in the month of July he sent a letter to the deceased to pay his July quarterly dues. At that time the deceased had been a member three months, and the letter, even if received by the deceased, was not the notice required by the by-law, and furnished no legal foundation for the termination of his membership.
Without considering the other questions presented by the learned counsel for the appellant, it follows that the judgment must be reversed and a new trial ordered, costs to abide the event.
HIRSCHBERG, P.J., WOODWARD, BURR and CARR, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.