Opinion
October, 1901.
A.B. Jaworower, for appellant.
Louis Levene (A.B. Schleimer, of counsel), for respondent.
The question presented by this appeal is whether, in accordance with the constitution and by-laws of the defendant, the plaintiff's deceased husband was notified to pay dues and assessments that he would be suspended if said dues and assessments were not paid. If, within the meaning of the said constitution and by-laws, he was not so notified, the plaintiff was entitled to recover.
Article VII, section 1, of the defendant's general laws, provides: "A member who fails to pay his dues, endowment, assessments, reserved fund tax or other assessments, should, after being notified thereof by the secretary by a registered letter, if he fails to pay at the following meeting, be stricken from the list of membership." The defendant attempted to prove a notification to the plaintiff's husband by mailing to him, as a registered letter, a notice stating that the addressee was in arrears to the amount of three dollars and seventy-five cents, and, if said amount was not paid, he would be suspended from membership. Notice may undoubtedly be given in any manner the by-laws prescribe, for the parties may agree what shall or shall not be notice. Bacon Ben. Soc. (2d ed.), § 381. The registered letter was mailed February 7, 1899, and it was returned by the postmaster to the defendant's secretary on the following day because the plaintiff's husband could not be found, and the letter was refused by the person residing at the place to which the letter was addressed. Mr. Weinberg was not expelled until the twelfth of February, so that the defendant knew four days before the expulsion that he had not received the notice. If the defendant, without such knowledge, had expelled Weinberg, it might have been argued, and perhaps with force, that the risk of the mail was upon him under the by-laws and the expulsion in consequence legal. But with full knowledge that Weinberg had not received the notice, the defendant, without affording such a hearing as the law contemplates, expelled him from the society. The cases all hold that expulsion from a society, if a property right is involved, must be on notice. Downing v. St. Columba's Soc., 10 Daly, 262; Loubat v. Le Roy, 40 Hun, 546, 552; People ex rel. Grunwald, v. I.O. Ahavas Israel, 13 Misc. 426; Simmons v. Syracuse Benev. Soc., 32 N.Y. St. Repr. 428. The registered letter in this instance was, at most, an attempted notice — not one calculated to enable the member to protect his property interest in the society — and was, therefore, unavailing as authority upon which to found a forfeiture. People ex rel. Meads v. McDonough, 8 A.D. 591, 596; Wachtel v. Noah's Widow Soc., 84 N.Y. 28; People ex rel. Deverell v. M.M.P. Union, 118 id. 101, 108.
The judgment must be affirmed, with costs.
FREEDMAN, P.J., and GILDERSLEEVE, J., concur.
Judgment affirmed, with costs.