Chase, J.
The plaintiff joined the defendant association and became a subscriber for twenty shares of its monthly
payment stock on November 8, 1900. The stock was issued as of November 1, 1900, and the certificate states that it is issued and accepted subject to the articles of association, by-laws and terms and conditions expressed on the back thereof. Among the terms and conditions expressed on the back thereof are the following:
“
First.
The member agrees to pay or cause to be paid without notice a monthly payment of 50c. per share for each share named herein.
“Second.
The monthly payments on these shares are required to be made at the principal office, whether in person or through a local branch, on or before the third business day of each month. Failing to make such payment, a fine at the rate of Five Cents per share for such failure will be charged and must be paid before other payments will be credited. The Association is only responsible for moneys received at Principal Office.
“
Third.
This certificate is guaranteed to reach maturity or par value in 128 months from date of issue, provided the dues hereon are promptly paid.
“
Foxorth.
If a monthly payment hereon becomes past due for 4 months this certificate will be cancelled and amount paid forfeited to the Association as profits.
“
Fifth.
This certificate is withdrawable, subject to Article 41 on 30 days’ written notice to the Secretary at the principal office after one year, with one-third of apportioned profits if during second year; one-half profits third and fourth years; two-thirds profits fifth and sixth years; three-quarters profits thereafter and before maturity.
“
Sixth.
A withdrawal fee of 50c per share will be deducted when shares are withdrawn.”
Article 41, referred to in the fifth paragraph of the terms and conditions on the back of the certificate, so far as material, is as follows: “ Only shares which are not pledged as security upon an advance can he withdrawn before maturity, and then only provided the same are in good standing and all dues, claims and fines thereon have been paid. All withdrawals
shall be subject to such terms and conditions relative thereto as shall be expressed in the certificate of shares, provided, however, that all certificates for withdrawals must be filed with the secretary of the association at the principal office properly receipted and thirty days’ notice of intention to withdraw may be required to be given therewith. Upon filing of the notice of withdrawal the payment of dues, if any, shall cease and the withdrawal value thereof shall be calculated as of the date of filing of the notice but no interest upon withdrawal value of the shares shall be paid. Payment shall be made in the order of the application for withdrawal but the association shall not be required to pay out on withdrawing or matured stock more than one-half of the amount received from dues and stock payments in any month.” Installment stock matures and is payable when the dues paid thereon with the profits apportioned thereto and credits thereon shall equal one hundred dollars per share.
The plaintiff received a copy of the by-laws when he joined the association and was given a pass book on which to enter the payments as they were made by him. The payments made by him to the association were entered upon the pass book. It appears that the plaintiff made a payment to the defendant of $10 each month from November, 1900, to June, 1901, inclusive, although such payments were generally made after due day. He paid $20 on September 16, 1901, and $20 February 10, 1902, making an aggregate payment of $120. It is not claimed by the plaintiff that he ever made any other or further payments to the defendant. At some time after the plaintiff made the February, 1902, payment, and he testifies that he thinks it was in March, 1902, and four or five months after he had ceased making payments to the defendant, he called at the office of the defendant and delivered to a person at such office an application for withdrawal signed by him. He further testifies that he offered to give such person his stock certificate and pass book if such person would give him a receipt for them, but that the person would not give him a receipt and he declined to leave them. This
action was commenced. March 24,1903, and upon evidence, the material part of which is here stated, judgment was directed in favor of the plaintiff for $146.40. The complaint alleged that “ plaintiff informed the defendant herein of his desire
to
withdraw said certificate of shares.” Written application was necessary. Ho written application was pleaded. On the trial secondary evidence of an alleged written application for withdrawal was given without a previous notice to produce subject to objection and exception. It is claimed that such ruling was erroneous, but for the purpose of this opinion we will assume that the application for withdrawal was sufficiently pleaded and that there was no error in the admission of evidence of the contents of the alleged written application. There is no evidence of an acceptance of the application or of' any affirmative act on the part of the defendant. Withdrawal is a privilege dependent upon compliance with the conditions upon which withdrawal is allowed. The burden was on the plaintiff to show himself entitled to withdrawal. One condition is that the stock is “in good standing, and all dues, claims and fines thereon have been paid.” It is not disputed that in March, 1902, when the plaintiff claims the application for withdrawal was made, at least sixteen months had elapsed since the stock was issued and only an amount equal to twelve monthly payments had been paid. If .the application for withdrawal was made after the third business day of March then such application was made after the seventeenth payment was due. It is suggested that it is not shown that the collector called for these payments. That fact might be considered by the association as a reason why fines should be remitted, but it is not a reason why the dues should not be paid. The dues are not credited until paid at the home office, and withdrawal is dependent upon the subscriber having paid all dues for which he is liable. In this case four or five payments due when the alleged application for withdrawal was made were not paid. Plaintiff, therefore, was not entitled to withdrawal.
The respondent urges that a forfeiture can be waived, and h
claims a waiver in this case by reason of the defendant’s accepting the payment in February, 1902, and he cites in support of his contention a large number of cases, among which are
Butler
v.
American Popular Life Ins. Co.
(42 N. Y. Super. Ct. 342);
Bradley
v.
John Hancock Mut. L. I. Co.
(20 App. Div. 22);
Munn
v.
Masonic Life Assn.
(115 App. Div. 855);
Insurance Company
v.
Eggleston
(96 U. S. 572);
Insurance Company
v.
Wolff
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Chase, J.
The plaintiff joined the defendant association and became a subscriber for twenty shares of its monthly
payment stock on November 8, 1900. The stock was issued as of November 1, 1900, and the certificate states that it is issued and accepted subject to the articles of association, by-laws and terms and conditions expressed on the back thereof. Among the terms and conditions expressed on the back thereof are the following:
“
First.
The member agrees to pay or cause to be paid without notice a monthly payment of 50c. per share for each share named herein.
“Second.
The monthly payments on these shares are required to be made at the principal office, whether in person or through a local branch, on or before the third business day of each month. Failing to make such payment, a fine at the rate of Five Cents per share for such failure will be charged and must be paid before other payments will be credited. The Association is only responsible for moneys received at Principal Office.
“
Third.
This certificate is guaranteed to reach maturity or par value in 128 months from date of issue, provided the dues hereon are promptly paid.
“
Foxorth.
If a monthly payment hereon becomes past due for 4 months this certificate will be cancelled and amount paid forfeited to the Association as profits.
“
Fifth.
This certificate is withdrawable, subject to Article 41 on 30 days’ written notice to the Secretary at the principal office after one year, with one-third of apportioned profits if during second year; one-half profits third and fourth years; two-thirds profits fifth and sixth years; three-quarters profits thereafter and before maturity.
“
Sixth.
A withdrawal fee of 50c per share will be deducted when shares are withdrawn.”
Article 41, referred to in the fifth paragraph of the terms and conditions on the back of the certificate, so far as material, is as follows: “ Only shares which are not pledged as security upon an advance can he withdrawn before maturity, and then only provided the same are in good standing and all dues, claims and fines thereon have been paid. All withdrawals
shall be subject to such terms and conditions relative thereto as shall be expressed in the certificate of shares, provided, however, that all certificates for withdrawals must be filed with the secretary of the association at the principal office properly receipted and thirty days’ notice of intention to withdraw may be required to be given therewith. Upon filing of the notice of withdrawal the payment of dues, if any, shall cease and the withdrawal value thereof shall be calculated as of the date of filing of the notice but no interest upon withdrawal value of the shares shall be paid. Payment shall be made in the order of the application for withdrawal but the association shall not be required to pay out on withdrawing or matured stock more than one-half of the amount received from dues and stock payments in any month.” Installment stock matures and is payable when the dues paid thereon with the profits apportioned thereto and credits thereon shall equal one hundred dollars per share.
The plaintiff received a copy of the by-laws when he joined the association and was given a pass book on which to enter the payments as they were made by him. The payments made by him to the association were entered upon the pass book. It appears that the plaintiff made a payment to the defendant of $10 each month from November, 1900, to June, 1901, inclusive, although such payments were generally made after due day. He paid $20 on September 16, 1901, and $20 February 10, 1902, making an aggregate payment of $120. It is not claimed by the plaintiff that he ever made any other or further payments to the defendant. At some time after the plaintiff made the February, 1902, payment, and he testifies that he thinks it was in March, 1902, and four or five months after he had ceased making payments to the defendant, he called at the office of the defendant and delivered to a person at such office an application for withdrawal signed by him. He further testifies that he offered to give such person his stock certificate and pass book if such person would give him a receipt for them, but that the person would not give him a receipt and he declined to leave them. This
action was commenced. March 24,1903, and upon evidence, the material part of which is here stated, judgment was directed in favor of the plaintiff for $146.40. The complaint alleged that “ plaintiff informed the defendant herein of his desire
to
withdraw said certificate of shares.” Written application was necessary. Ho written application was pleaded. On the trial secondary evidence of an alleged written application for withdrawal was given without a previous notice to produce subject to objection and exception. It is claimed that such ruling was erroneous, but for the purpose of this opinion we will assume that the application for withdrawal was sufficiently pleaded and that there was no error in the admission of evidence of the contents of the alleged written application. There is no evidence of an acceptance of the application or of' any affirmative act on the part of the defendant. Withdrawal is a privilege dependent upon compliance with the conditions upon which withdrawal is allowed. The burden was on the plaintiff to show himself entitled to withdrawal. One condition is that the stock is “in good standing, and all dues, claims and fines thereon have been paid.” It is not disputed that in March, 1902, when the plaintiff claims the application for withdrawal was made, at least sixteen months had elapsed since the stock was issued and only an amount equal to twelve monthly payments had been paid. If .the application for withdrawal was made after the third business day of March then such application was made after the seventeenth payment was due. It is suggested that it is not shown that the collector called for these payments. That fact might be considered by the association as a reason why fines should be remitted, but it is not a reason why the dues should not be paid. The dues are not credited until paid at the home office, and withdrawal is dependent upon the subscriber having paid all dues for which he is liable. In this case four or five payments due when the alleged application for withdrawal was made were not paid. Plaintiff, therefore, was not entitled to withdrawal.
The respondent urges that a forfeiture can be waived, and h
claims a waiver in this case by reason of the defendant’s accepting the payment in February, 1902, and he cites in support of his contention a large number of cases, among which are
Butler
v.
American Popular Life Ins. Co.
(42 N. Y. Super. Ct. 342);
Bradley
v.
John Hancock Mut. L. I. Co.
(20 App. Div. 22);
Munn
v.
Masonic Life Assn.
(115 App. Div. 855);
Insurance Company
v.
Eggleston
(96 U. S. 572);
Insurance Company
v.
Wolff
(95 U. S. 326). These cases are not applicable to the present case because the defendant does not claim a forfeiture. One of the defendant’s by-laws provides that in case monthly payments are in arrears for four months the certificate can be canceled. Such a cancellation requires affirmative action on the part of the defendant. If the defendant had after February, 1902, attempted to cancel the plaintiff’s certificate of stock for failure to pay four monthly payments of dues it might be claimed that after the receipt of dues in February the defendant had waived the right to forfeit and cancel the stock by reason of defaults occurring before that, day. In that case the authorities would be in point. The defaults existed at the time the claimed application for withdrawal was made. The defaults also created the fines without any act on the part of the defendant. There is nothing in what occurred at the defendant’s office when the plaintiff .'claims to have made his application for withdrawal which in any way creates a forfeiture, estoppel or waiver on the part of the defendant. In any event a waiver of forfeiture or of fines if claimed, does not waive payment of monthly dues omitted or put a delinquent on a par with prompt payers where the favor of a loan or withdrawal is asked. If a stockholder desires to withdraw from the association he must show that he has complied with the by-laws and that he is not in arrears for dues or fines. Plaintiff’s stock was never canceled and he could at any time have paid all dues and fines that he owed so as to make his stock in
“
good standing ” and then he could have given written notice of wit.hd rawal as provided by the by-laws. Upon so doing he would have been entitled to payment “ in the order of the application for with
drawal,” but even then the association was not required to pay out on withdrawing and matured stock more than one-half of the amount received from dues and stock payments in any month.
The burden was on the plaintiff in this case to establish his right to withdrawal and a refusal by the defendant to accord him the privilege of withdrawal after he had shown compliance with every prerequisite. The judgment should be reversed and a new trial granted, with costs to abide the event.