Davis v. Atkinson

Appellate Terms of the Supreme Court of New York

Davis v. Atkinson

33 Misc. 483, 67 N.Y.S. 851

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 15, 1900

StatusPublished

This text of 33 Misc. 483 (Davis v. Atkinson) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. Atkinson, 33 Misc. 483, 67 N.Y.S. 851 (N.Y. Ct. App. 1900).

Pincite

Opinion

O’Gorman, J.

The by-laws of the defendant’s association provided that, on the death of any member iv-ho is not disqualified by sections 57 to 69 of the same, the lodge will pay to his widow the sum of $100. Plaintiff’s husband died on February 17, 1900, and it is conceded that no dues were paid by him from the thirtieth of the preceding June. The only section of the by-laws invoked by the defendant to sustain its contention that the decedent was disqualified at the time of his death is section 58, which provides: “ Any member whose dues remain unpaid for thirteen weeks shall [484]*484be allowed until the following meeting after said thirteen weeks’' time to pay the same, and if not then paid shall not be entitled to receive the benefits of this Lodge until four weeks after paying the same.” It is evident that two things must concur to deprive a member of the benefits of the association under this provision of the by-laws. First, he must he in arrears in the payment of his dues for thirteen weeks, and, secondly, he must fail to pay such arrears by the next succeeding meeting. The disqualification is not affected by the member being thirteen weeks in arrears, but by his neglect to pay the same by the following meeting. There is no evidence in the case showing that any meeting has taken place since the decedent became indebted for the thirteen weeks, and that was part of the defendant’s case. It being conceded that the deceased was a member of the defendant’s lodge at the time of his death, the burden was on the defendant to establish the violation or neglect of some law by which the rights of the plaintiff’s deceased were impaired or forfeited. Elmer v. Mutual Benefit Assn., 47 N. Y. St. Repr. 35; affd., 138 N. Y. 642; Demings v. Supreme Lodge, 60 Hun, 350; Meagher v. Life Hnion, 65 id. 358. It was correctly held, therefore, that the defense was not established, and the judgment for the plaintiff must be affirmed.

Beekman, P. J., and Giegerich, J., concur.

Judgment affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

O’Gorman, J.

The by-laws of the defendant’s association provided that, on the death of any member iv-ho is not disqualified by sections 57 to 69 of the same, the lodge will pay to his widow the sum of $100. Plaintiff’s husband died on February 17, 1900, and it is conceded that no dues were paid by him from the thirtieth of the preceding June. The only section of the by-laws invoked by the defendant to sustain its contention that the decedent was disqualified at the time of his death is section 58, which provides: “ Any member whose dues remain unpaid for thirteen weeks shall [484]*484be allowed until the following meeting after said thirteen weeks’' time to pay the same, and if not then paid shall not be entitled to receive the benefits of this Lodge until four weeks after paying the same.” It is evident that two things must concur to deprive a member of the benefits of the association under this provision of the by-laws. First, he must he in arrears in the payment of his dues for thirteen weeks, and, secondly, he must fail to pay such arrears by the next succeeding meeting. The disqualification is not affected by the member being thirteen weeks in arrears, but by his neglect to pay the same by the following meeting. There is no evidence in the case showing that any meeting has taken place since the decedent became indebted for the thirteen weeks, and that was part of the defendant’s case. It being conceded that the deceased was a member of the defendant’s lodge at the time of his death, the burden was on the defendant to establish the violation or neglect of some law by which the rights of the plaintiff’s deceased were impaired or forfeited. Elmer v. Mutual Benefit Assn., 47 N. Y. St. Repr. 35; affd., 138 N. Y. 642; Demings v. Supreme Lodge, 60 Hun, 350; Meagher v. Life Hnion, 65 id. 358. It was correctly held, therefore, that the defense was not established, and the judgment for the plaintiff must be affirmed.

Beekman, P. J., and Giegerich, J., concur.

Judgment affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

33 Misc. 483, 67 N.Y.S. 851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-atkinson-nyappterm-1900.

Opinion

Related

Cite This Page — Counsel Stack