
    Strasser v. Staats.
    
      (Supreme Court, General Term, Third Department.
    
    February 4, 1891.)
    1. Mutual Benefit Insurance—Accrued Dues.
    By the constitution and by-laws of defendant’s lodge, members’ dues accrued weekly, and a forfeiture by the member of all lodge benefits was prescribed in case he should be in arrears for dues over the amount of 13 weeks. The dues were uniformly charged and collected quarterly. The deceased member, through whom plaintiff claimed a funeral benefit, died within a month after having regularly paid his last quarterly dues. Held, that the phrase “accrued” weekly did not mean “payable” weekly; that the dues were payable quarterly; and that deceased was not in arrears at the time of his death.
    2. Same—Right to Sue.
    The constitution, by-laws, rules, and regulations of the defendant’s lodge provided that a resort to the civil courts to recover benefits, before the disputed question was submitted to the lodge and taken on appeal in regular order to the sovereign grand lodge, should render any right or claim to any benefits null and void. Held, that this restriction could only affect benefits to, members of the lodge, and not benefits to which strangers were entitled by virtue of a contract made in their behalf by a member with the lodge.
    Appeal from Albany county court.
    Action by Solomon Strasser against John L, Staats, as Noble Grand or President of Mount Herman Lodge No. 38,1. O. O. F., of the state of New York.
    The plaintiff is the assignee of the next of kin of Moses Strasser, deceased, who in his life-time was for many years a member of defendant’s lodge, and on whose death the plaintiff, as the assignee of the deceased, next of kin, claimed a funeral benefit. The defendant is an unincorporated association of more than seven members. This association is a secret organization of Odd-Fellows, known as “Mount Herman Lodge.” By the by-laws of this lodge, on the death of a member not disqualified his next of kin are entitled to a funeral benefit of $50 from the lodge. Moses Strasser, deceased, had been in his life-time for many years a member of this lodge, and on his death the funeral benefit was by his next of kin assigned to the plaintiff, who is a son of the deceased. This lodge is subordinate to the grand lodge of the 'state, from which it derives its constitution; and, subject to the provisions of the constitution, enacts its own by-laws, and, among the powers which it may exercise, it may, within certain prescribed limits, fix the amount of the weekly dues of its members. In the exercise of this power this lodge fixed the dues of its members at 13 cents per week by one of the provisions of its by-laws. The constitution provides that “the dues of a member of the lodge accrue weekly, and its by-laws must express the amount at a given rate per week.” The bylaws also provide that “no brother who is in arrears for dues, fines, or assessments of any kind over the amount of thirteen weeks * * * shall be entitled to receive the benefits of this lodge until after the expiration of six weeks from the time of payment of such arrearage. ” The evidence shows that all dues of members were charged and collected quarterly. The book of the lodge shows
    
      &' that the dues of deceased were charged on the 1st of, April, July, October, and January in eacli year, and the dues charged July 1, 1888, were paid and credited on the records of the lodge July 13,1888. The deceased died August 4, 1888. Defendant appeals from a judgment of the county court affirming a judgment of the city court of Albany in favor of plaintiff.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      J. W. Baker, for appellant. Rosendale c6 Hessberg, (Albert Hessberg, of counsel,) for respondent.
   Mayham, J.

This controversy must turn upon the construction to be put upon the provisions of- the constitution of the lodge, which provides that “the dues of members of the lodge accrue weekly, ” when read in connection with that provision of the by-laws which prescribes the ground of forfeiture of benefits, and which is as follows: “Ho brother who is in arrears for dues, fines, or assessments of any kind over the amount of thirteen weeks * * * shall be entitled to receive the benefits of this lodge until after the expiration of six weeks from the time of payment of such arrearages.” It is quite apparent from the uniform action of the lodge in not exacting weekly payments of dues from its members that it did not interpret the phrase “accrue weekly” as equivalent to “payable weekly,” or “due weekly.” Bouvier defines “accrue” as “to grow to; to be added to; as, the interest accrues on the principal.” Applying this definition to the phrase “dues accrue weekly,” and it would not signify that they are payable weekly;.but, rather, that they are estimated or measured weekly, to grow or to be added to each other as interest is added to or increases the amount of a debt. This at least should be its signification when applied to members who for years have been paying quarterly at the rate of 13 cents per week, rather than the other construction, which might result in a penalty or forfeiture, which is not favored in law. If, therefore these dues were payable quarterly, then no dues could be deemed as in arrears until the end of the quarter. The quarter ended on the 1st of July, 1888, and from that time, and that time only, would dues be deemed to be in arrears, but the “dues accruing weekly” thereafter would not be in arrears, because they would not fall due until the first of the succeeding October, when they, under the definition of Bouvier, and the usage of the ' order, would fall due. What dues, then, were in arrears on and after the 1st ■A of July, 1888 ? Clearly only those which fell due on that day, and they were paid and credited on the 13th of July, 1888, nearly a month before the death of Moses Strasser. Ho dues, therefore, at the time of the payment had been in arrears for 13 weeks at the time of the payment on the' 13th of July, and consequently no forfeiture could attach, and the next of kin of Moses Strasser were, under the by-laws of this lodge, entitled to the funeral benefits, unless he deprived himself of that right by bringing his action in the civil courts before exhausting all his remedies under the constitution and by-laws of the order. But it is insisted that the constitution, by-laws, rules, and regulations of the order require that all disputed questions arising in it must first be submitted to the lodge, and an appeal taken from its determination to the district grand committee, and then to the grand lodge, and, unless permission be refused by that body, to the sovereign grand lodge, and that a resort to the civil court until all these remedies are invoked and exhausted, shall render any right or claim to any of the benefits provided for in sections 4, 5, and 6 null and void. It is quite true that controversies between members of a lodge and the lodge itself can and should be settled, or attempts should be made for their adjustment, within the order, where provisions are made for such settlement by the rules, constitution, or by-laws of the order. Lafond v. Deems, 81 N. Y. 514; Poultny v. Bachman, 31 Hun, 49. The contract or compact under and in virtue of which members can make claims against the order for benefits must ■be the constitution and by-laws. To these members are deemed to have assented, and, so long as they are fairly and impartially executed, that a court of equity would not be authorized to intervene to correct abuses, the parties must and ought to be. governed by the letter of the contract. This would clearly be so where a member of the order was seeking a benefit conferred by the constitution or by-laws of the lodge. Poultny v. Bachman, 31 Hun, 54. Does the same rule apply when the claim is made by a person not a member of the orde.r, who can have no hearing in person before its body, or access to the tribunals provided by it for adjustment of questions between its members? The case shows that neither the plaintiff nor any of the next of kin of Moses Strasser now are, or ever have been, members of this order. The remedies which the lodge and its superior tribunals have provided are, by the constitution and by-laws, only open to members of the society. The plaintiff is not such a member, and does not derive title from a member, and cannot appear in the tribunals of the society and prosecute his claim, except by favor. His right to the funeral benefit is a contract right; and. since he has no right to resort to the tribunals of the secret organization, he has not, in a legal sense, failed to exhaust his remedies. The contract provides that the funeral benefit “shall be paid over without delay to the deceased brother’s nearest of kin.” When this contract matures it exists between the lodge and non-members. It would not be a reasonable construction of a contract between the lodge and a nonmember to hold that the non-member’s rights under it are subject to the adjudication of his adversary. Its rules are binding upon its members, for they have so agreed; but, when a member makes a contract with the lodge for the benefit of third parties, the contract must be enforceable according to its terms, and not according to the subsequent adjudication of the lodge as to the meaning of its terms. The provision of the constitution that benefits “shall be dependent upon and recoverable only through the methods provided in the constitution” must mean that benefits to members shall be so recoverable, not benefits to which strangers, by virtue of a contract made in their behalf with the lodge, are entitled. His payment was due without delay. The judgment should be affirmed, with costs. All concur.  