Taddonio v. Brotherhood Society of Pomaricus

Appellate Terms of the Supreme Court of New York

Taddonio v. Brotherhood Society of Pomaricus

136 N.Y.S. 45

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 21, 1912

StatusPublished

This text of 136 N.Y.S. 45 (Taddonio v. Brotherhood Society of Pomaricus) 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

Taddonio v. Brotherhood Society of Pomaricus, 136 N.Y.S. 45 (N.Y. Ct. App. 1912).

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Opinion

LEHMAN, J.

[1] The plaintiff brought suit for the amount of the death benefits, which, she claims, accrued by reason of the death of the intestate under the by-laws of the defendant. The plaintiff’s intestate paid his dues on July 10th. He went to Italy on July 12th, and died on September 21st. The by-laws of the defendant contain a provision that, if a member goes abroad, he may keep his membership in abeyance for one year without payment of dues, by notice to [46]*46the president. The plaintiff’s intestate did not give such notice, and the by-laws clearly provide that an absence abroad does not preclude a member’s representative from obtaining the death benefits, if the member prefers not to avail himself of the benefit' of this provision before departure. The by-law, therefore, has no application in this case.

[2] The by-laws also provide that “a member who is in arrears for two consecutive months loses all rights of membership.” The defendant claims that the intestate has forfeited his rights of membership by failure to pay his dues for the period between July 10th and September 21st. In the case of Bukofzer v. Independent Sons of Benjamin, 15 N. Y. Supp. 922,¹ affirmed 139 N. Y. 612, 35 N. E. 204, on “opinion below,” .the court stated, in construing a similar provision in the constitution of a mutual benefit society:

“The constitution of the defendant does not say that a member shall lose the benefit of the endowment fund whenever he owes six months dues. That forfeiture is only to occur when he is in arrears for the prescribed period. A person cannot be properly said to be in arrears until the time of payment has come and gone.”

I cannot distinguish that case from the one at bar. The dues in this ' case were payable personally at the monthly meeting, which was held about the 10th of each month. Until the meeting in August the intestate was not in arrears. From that date two months had not elapsed until the death of the intestate, and he was, therefore, not “in arrears for two consecutive months.”

Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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LEHMAN, J.

[1] The plaintiff brought suit for the amount of the death benefits, which, she claims, accrued by reason of the death of the intestate under the by-laws of the defendant. The plaintiff’s intestate paid his dues on July 10th. He went to Italy on July 12th, and died on September 21st. The by-laws of the defendant contain a provision that, if a member goes abroad, he may keep his membership in abeyance for one year without payment of dues, by notice to [46]*46the president. The plaintiff’s intestate did not give such notice, and the by-laws clearly provide that an absence abroad does not preclude a member’s representative from obtaining the death benefits, if the member prefers not to avail himself of the benefit' of this provision before departure. The by-law, therefore, has no application in this case.

[2] The by-laws also provide that “a member who is in arrears for two consecutive months loses all rights of membership.” The defendant claims that the intestate has forfeited his rights of membership by failure to pay his dues for the period between July 10th and September 21st. In the case of Bukofzer v. Independent Sons of Benjamin, 15 N. Y. Supp. 922,¹ affirmed 139 N. Y. 612, 35 N. E. 204, on “opinion below,” .the court stated, in construing a similar provision in the constitution of a mutual benefit society:

“The constitution of the defendant does not say that a member shall lose the benefit of the endowment fund whenever he owes six months dues. That forfeiture is only to occur when he is in arrears for the prescribed period. A person cannot be properly said to be in arrears until the time of payment has come and gone.”

I cannot distinguish that case from the one at bar. The dues in this ' case were payable personally at the monthly meeting, which was held about the 10th of each month. Until the meeting in August the intestate was not in arrears. From that date two months had not elapsed until the death of the intestate, and he was, therefore, not “in arrears for two consecutive months.”

Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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