Wachtel v. Noah Widows & Orphans' Benevolent Society

84 N.Y. 28, 60 How. Pr. 424, 1881 N.Y. Misc. LEXIS 88, 1881 N.Y. LEXIS 371

• Court: New York Court of Appeals
• Decided: February 1, 1881
• Status: Published

Opinion

Danforth, J.

It is well settled that an association whose members become entitled to privileges or rights of property therein cannot exercise its power of expulsion without notice to the person charged, or without giving him an opportunity to be heard. (Ang. & Ames on Corp., § 420; People ex rel. Bartlett v. Med. Soc., 32 N. Y. 187; Com. v. Penn. Ben. Ins., 2 Serg. & R. 141; Innes v. Wylie, 1 C. & K. 257). This general rule of law is recognized by the defendant’s by-law as applicable to one who from any cause should fail to pay his monthly contribution. It is in these words: “ The financial secretary shall give to each member who is six months in arrears a written notice, calling his attention to the fact that he shall be stricken from the roll in case he does not pay his dues in thirty days.” ' It is admitted that the deceased was in arrears, but it is established as a fact that the notice provided for in such a case was not given to him. It is said, however, by the learned counsel for the appellant, that this omission was caused by the failure of the deceased to give notice to the association of his change of residence. It does not appear that he was under any obligation to do so. At the time he became a member of the society, he notified it that his then place of residence was 41 First.street, in the city of Hew York, but he subsequently removed to East Eighteenth street. There is nothing to show that the object of the information as to residence was to enable the defendant to serve its notice at that place, or that the deceased agreed that they might be left at his house. There are many other reasons why it would be well for such an association to know the residence of its members; but however that may be, the defendant, by another by-law, defined the penalty for neglect in giving notice of a change of residence. It declares that for such omission the member in default shall incur a fine of twenty-five cents. It would lead to a mbst ub just result, if there should be added, a forfeiture of the whole benefit to which his representatives are, in case of his death, entitled. Such consequence is not declared and cannot be implied by any legal construction. In the absence of any agreement by the member, or any provision in the charter or bylaws, for a different mode of service, it should be made personally, as required at common law, where the object is to deprive a party of his rights or property; or if that can be dispensed with, then in such other mode as will be most likely to effect its object. Here there was no service, and the court has found that its omission is not excused. This conclusion is well warranted by the facts found, and the judgment should be affirmed.

All concur.

Judgment affirmed.