Opinion
December, 1915.
Hymes, Woytisek Schaap (Michael Schaap and Edward Hymes, of counsel), for appellants.
Steiner Petersen (Joseph H. Kohan, of counsel), for respondent.
The plaintiffs sue as next of kin of one Edward Raab, their intestate, for $1,000 claimed to be due from the defendant upon a certificate of membership insurance. The said intestate died on the 12th day of August, 1912, leaving him surviving the plaintiffs, his widow and children.
The defendant is a corporation chartered by the state of Pennsylvania and formed for the purpose of helping members of the Slavonic race residing in this country through mutual insurance in case of sickness or death. The deceased became a member of one of its subordinate lodges or assemblies on the 12th day of May, 1906. On the 1st day of May, 1912, a charge was made against him by said defendant for two dollars and seventy-one cents of which sixty-five cents was for an amount due from his wife, one of the plaintiffs. It was the custom of members to pay the charges against their wives, but such charge was not a liability of the husband. Dues also became due by decedent on 1st of June, 1912. None of said dues had been paid on the death of decedent on said 12th day of August, 1912.
There is no substantial difference between the appellants and the respondent as to the above facts. The defendant refused to pay the sum of $1,000 which the plaintiffs claimed was due them under the insurance of the defendant and that its answer set up the following defenses:
(1) That the action should have been by the administrator of the decedent.
(2) That the plaintiffs did not furnish the documents required by the constitution and by-laws of the defendant on presentation of the claim.
(3) That sixty days had not elapsed since the receipt of such documents by the defendant.
(4) That the deceased was in arrears more than sixty days for the assessments for the month of May, 1912, amounting to two dollars and seventy-one cents, and was, therefore, expelled at a meeting held 13th of July, 1912.
(5) That deceased voluntarily withdrew and resigned as a member.
As to the first ground, under the terms of the certificate the cause of action accrued to the plaintiffs and the action was properly brought by them. The second and third grounds are unsupported by proof, and the evidence on behalf of the plaintiffs that shortly after the decedent's death the necessary papers were tendered to the financial secretary of the defendant is uncontradicted. The claim that the plaintiffs' intestate voluntarily withdrew and resigned as a member presented a question of fact for the jury as to whether in view of all the circumstances the statements made by the decedent to the officers of the defendant expressed such a decision upon his part. Somewhat similar language has been held not sufficient to defeat a claim like the one presented by the plaintiffs. Markgraf v. Fellowship of Solidarity, 65 Misc. 64-66.
Taking up the question as to whether the decedent was expelled prior to his death, we find that the by-laws of the defendant specify the conditions and the procedure under which an expulsion can take place and briefly stated they provide: That a member who has failed to pay regular, special and mortuary benefits and fines within sixty days from the date of assessment of the supreme assembly, "and who has been notified or admonished to pay and has failed to do so, shall be expelled" at a regular or special meeting. That the member must first be notified of his indebtedness, "of the amount of the same and of the time when he would be expelled," and that the delinquent member shall be given such notice by the assembly directly or by a registered letter; the sending of such registered letter to be deemed sufficient notice, regardless of whether the member received it. If the deceased can be held to have ever been expelled by reason of a violation of said by-laws it must be because of the action taken at a meeting of August 10, 1912, and the regularity thereof and at which meeting the resolution of expulsion was adopted. There is not sufficient proof that the decedent was notified "of the time when he would be expelled" (§ 92) "directly or through an officer or committee, or by a registered letter." § 93. It must, therefore, be held that the proceedings to expel the decedent were fatally defective and that consequently he had not ceased to be a member at the time of his death. Ellis v. National Provident Union, 50 A.D. 255.
The other ground urged was that the plaintiffs were not entitled to recover because no extension of time to pay the arrears of dues had been granted by the assembly. The section involved reads as follows:
"Section 76. A member who failed to pay his mortuary, regular and special assessments within thirty days from the date of the assessments of the Supreme Assembly shall not be entitled to the sick and death benefits, except where he has requested his Assembly for an extension of time and such request has been granted."
It will be observed that there is nothing in said section about dues, although in the said registered letter written under section 93 reference is made only to arrears of dues. Unless the words "dues" and "assessments" as used were synonymous said section 76 apparently has no application to the facts here. As described in the record the dues consisted of fifty cents monthly and the assessments mainly related to mortuary and sick benefits and the support of the official publication of the society.
Even if it be assumed that said section 76 relates to dues, it is not clear that the defendant has sustained the burden of proving that the plaintiffs are precluded from recovery because of the omission to pay the amounts that became due on May 13, 1912, and subsequent months. Davis v. Atkinson, 33 Misc. 484. The inferences may properly be drawn from the testimony that an extension of the time of payment was obtained. On the 6th of July, 1912, a certificate was issued by the defendant declaring that he was entitled to such benefit, although more than thirty days had passed since he became in arrears. The financial secretary of the defendant testified that the privilege of deferring payments had been at times granted to the decedent; that the decedent made a request to have his time to pay dues extended two, three or four months and it was so arranged and he invariably did so. Said secretary also said that he had had a talk with decedent on the 22d of July, 1912, when the decedent suggested that his name be dropped as other Bohemian societies to which he belonged would pay his sick benefit, whereupon said secretary asked decedent not to have any hard feelings, that he would have to send decedent a registered letter before he struck him off. At the time of the arrears the decedent was entitled to moneys from the society as a so-called sick benefit and it is not obvious from the record as to whether an account between the parties would show that he was in debt for thirty days prior to his decease, although probably such was the fact. The burden was upon the defendant to establish the alleged forfeiture.
The plaintiffs having been non-suited, they are upon this appeal entitled to the most favorable inferences deducible from the evidence and all contested facts are to be treated as established in their favor. Higgins v. Eagleton, 155 N.Y. 466; Sundheimer v. City of New York, 176 id. 497; Walsh v. Metropolitan Life Ins. Co., 105 A.D. 186; Flanagan v. Carlin Cons. Co., 134 id. 236. The claim that there had been a forfeiture under section 76 called for a determination of fact by the jury. A verdict based upon a finding that the decedent had not resigned and that there had been granted an extension of the time of payment as provided in said section would have been sustained by the evidence.
GUY and PAGE, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.