Opinion
October, 1913.
Grant Rouss (Jacob Rouss, of counsel), for appellant.
William E. Murphy, for respondent.
The defendant is a membership corporation composed of members of the police department of the city of New York. The plaintiff was a matron in the police department, and became a member of the defendant organization on October 1, 1909. This action is brought to recover $200 alleged by the plaintiff to be due her from the defendant under her certificate of membership in the defendant organization. The complaint alleged that, under the by-laws existing at the time the plaintiff became a member, she was entitled in case of death, dismissal or retirement to $200 provided she was a member in good standing for over eighteen months and less than three years; and that, subsequently, the by-laws were so amended as to provide for the payment of this sum upon the "resignation" of a member. It is further alleged that on February 26, 1912, the plaintiff resigned her position as matron in the police department. The answer by the defendant alleges that the by-laws were, subsequently to plaintiff's original membership, amended so as to provide that "any member in good standing five consecutive years who may resign from the police department of the city of New York shall receive a sum of not less than $500." The answer further alleged that this amendment was adopted in lieu of the provision which provided for the payment of $200 upon which the plaintiff bases her claim. The defendant contended that, because the plaintiff had not been a member of the defendant organization for five years, she was not entitled to recover. No evidence was introduced upon the trial. Both sides moved for judgment on the pleadings. This motion was originally denied by the court, and then both sides announced that they "rested on the pleadings." The court reserved decision, and subsequently granted judgment in favor of the plaintiff. From that judgment the defendant appeals to this court. The pleadings put in issue the facts upon which the plaintiff predicated her claim for judgment. Under these circumstances the pleadings were not in such a condition that the court could render judgment upon them. No determination of the rights of the parties could be had upon the conflicting contentions presented by the pleadings. The rights of the parties could only be determined upon the presentation of proof, unless the parties admitted the facts. The controverted allegations of the complaint afford no basis for the award of judgment for the plaintiff. The allegations of the complaint being put in issue by the answer, the plaintiff was not entitled to judgment unless she proved the controverted allegations.
It follows that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
PAGE and BIJUR, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.