Sherry v. Plasterers' Union

Per Curiam: We think the affidavit of defence was insufficient. Section 1, article X. of the constitution of the defendant corporation provides that a member of six months’ standing shall be entitled to funeral benefits, if he is “ not more than three months’ dues in arrears at the time of his death, the money to be paid to his [473] nearest relative.” John Sherry died on August 1, 1887. At that time, arrears were due for May, June, and July. The dues for August were not in arrear until August 2d, and at that time he was dead; 'so that, on August 1st, there were “ not more than three months’ dues ” in arrears. It was urged, however, that § 2, of article XIV., of the bylaws is in conflict with this view, in as much as it provides that “ any member becoming three months in arrears shall not be entitled to benefits, until eight weeks have expired from the time they settle up in full.” If we concede there is a conflict between the constitution and by-laws, it does not help the matter ; for, in such case, the by-laws must yield to the constitution, which is the fundamental law of the corporation. The further point was made that the plaintiffs’ statement of claim does not show upon its face that they are entitled to recover, in this, that it does not aver that the decedent was unmarried, at the time of his death, and that he did not leave a widow and a child or children surviving him. What they do aver is that “the plaintiffs are the father and mother of John Sherry, deceased, and his nearest relatives.” This we think sufficient. It makes out a prima facie ease, and the affidavit of defence does not allege that there is a wife or child living. Judgment affirmed.