Giniso v. Calabrian American Citizens' Mutual Benefit Ass'n

Seabury, J. The plaintiff, as the widow of one Vincenzo Giniso, has recovered judgment for $250 and costs against the defendant, a membership corporation. The plaintiff’s husband was a member of the defendant. Under the constitution and by-laws of the defendant it was required to pay, upon the death of one of its members in good standing, an endowment of $250. It appears that, on March 1, 1909, there was due from the plaintiff to the defendant the sum of nine dollars and ten cents. The husband was in arrears for over eight months. Article 21 of the defendant’s constitution provides as follows: “A member who does not pay his regular monthly dues or fines for two months and at the regular meeting of the third month fails to put himself into good standing, is considered in arrears. This arrearage continuing for three months more, the member will be declared suspended from the society.” On March 18, 1909, the husband of the plaintiff died. The other facts in the case were disputed and the court hav [164] ing rendered judgment for the plaintiff, we assume that the facts testified to by the plaintiff were true. From this evidence it appears that, on March 1, 1909, the plaintiff paid the financial secretary of the defendant nine dollars and ten cents and received a receipt for the same, and that fifteen days later the financial secretary called on the plaintiff and offered to return this money to her and, upon her refusal to accept it, threw the money on the floor and went away. .The first question to be determined is whether the fact that the deceased was in arrears for eight months operated, ipso facto and without any further action on the part of the defendant, as a suspension of the deceased from membership in the defendant. We think the question should be answered in the affirmative. Paster v. Nagelsmith, 30 Misc. Rep. 791. The only other question requiring discussion is whether the acceptance of the nine dollars and ten cents by the financial secretary was a waiver of the default of the plaintiff’s husband in the payment of his dues and effected his reinstatement. We think that the facts proved failed to establish such a waiver on the part of the defendant, or that the financial secretary had power to waive the provision of the defendant’s constitution and by-laws. Hart v. Adams Cylinder & Web Press Printing Assn., 69 App. Div. 578. The plaintiff having failed to establish a waiver, the deceased had not at the time of his death been reinstated as a member of the defendant; and the plaintiff cannot recover in this action. Lehman and Bijur, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.