Opinion
June 5, 1908.
Morris Hillquit, for the appellant.
William W. Butcher [ William M. Moore with him on the brief], for the respondent.
I think that this judgment must be affirmed. Only one question presented by the appeal need be noticed. The plaintiff sues as the widow and administratrix of her husband to recover a benefit payable to her after her husband's death by virtue of his membership in the society represented by the defendant, its president. Section 73 of the constitution of the society, so far as pertinent, reads: "Any member in arrears for dues or assessments for eight weeks stands suspended from benefit. If the member within two weeks from such suspension places himself within the eight-week limit, and remains within such limit for ninety days from date of suspension, he shall be restored to his previous rights. Failing to comply with the above, he shall stand suspended from the union." This member neglected to pay his dues from November 10, 1906, until January 19, 1907. On that day he paid such an amount as was sufficient to meet his dues until April 6, 1907. Thus having been suspended from benefits he, within 2 weeks thereafter, brought himself within the 8 weeks limit, and also by his advance payment kept himself within that 8 weeks limit for 90 days thereafter. For the 90 days expired on April 19, and as his dues were paid in advance until April 6th, he could not of course between April 6 and April 19 have fallen outside an 8 weeks limit. But this member died on February 24th, and the contention of the defendant is that the member did not keep within the 8 weeks limit for 90 days. The purpose of this provision is not to insure that the member should live for a period of 90 days, but that his dues should not fall into arrears during that period. This member met that condition by his advance payments, which, when accepted by the society, made it impossible for him to fall into arrears for any 8 weeks during the 90 days. And by the acceptance of the dues in advance, so as to make this condition impossible, I think that the defendant waived any right which it had to contest the claim upon section 73 of the constitution. ( Titus v. Glens Falls Ins. Co., 81 N.Y. 410; Herm. Estop. § 1206; Bacon Ben. Soc. Ins. § 431.)
The judgment is affirmed, with costs.
WOODWARD, HOOKER, RICH and MILLER, JJ., concurred.
Judgment affirmed, with costs.