Marks v. Congregation Daruch Amuno

5 Daly 8

Opinion

J. F. Daly, J.

I think the judgment should be reversed, on the ground that the justice should have allowed the Counterclaim of the congregation against the plaintiffs for dues, and set it off against his claim on the two notes. The obligation of the plaintiff, under the by-laws, to pay dues was sworn to by the witness Oettinger, and no objection was made that the by-laws were not produced; there was no resignation from the congregation by the plaintiff. The paper he sent as a resignation was intended evidently to be a sort of suspension of membership until the election of a new “ reader.”

No authority in the by-laws is shown for such a suspension ; under that paper the plaintiff and his brother evidently meant to reassume their rights as members upon the happening of the contingency set forth in it, without being compelled to go through the form of. a re-election as members. It was therefore not a resignation. The judgment should be reversed.

Van Brunt, J., concurred.

Larrehore, J., dissented.

Judgment reversed.