
    Antonio Rubino, Respondent, v. The Fraterna Association, Appellant.
    (Supreme Court, Appellate Term,
    October, 1899.)
    1. Benefit associations — By-law imposing a reasonable penalty.
    A by-law of a benefit association, which declares that a member who defaults in the payment of his monthly dues shall be suspended for a period of thirty days from the time when he has put himself in good standing with the treasurer, does not impose an unreasonable penalty.
    2. Same —■ Penalty not waived by accepting back dues.
    The association does not, by accepting the back dues, waive its right to insist on the penalty.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court, first district, borough of Manhattan.
    Achille J. Oishei, for appellant.
    Emanuel Hertz, for respondent.
   MaoLean, J.

According to the by-law of the defendant association, of which the plaintiff was a member, and from which he claims “sick benefits” from December 26, 1898, to January 4, 1899, every member shall pay his monthly dues between the first and last of each month, and if at the end of the month he be not in good standing with the treasurer, he shall be suspended for thirty days, such suspension to commence from the day he shall put himself into good standing with the treasurer.

The plaintiff was in default for his November dues, and so not in good standing with the treasurer from the end of November until December 12, 1898, and he was, therefore, suspended and not entitled to “ sick benefits ” until on and after January 11, 1899. In the judgment here appealed from, the learned justice erroneously awarded him recovery for “ sick benefits ” during the period of his suspension. The penalty of suspension for a defined period because of default in timely payment of dues which the member has obligated himself to pay, was not unreasonable, and the association did not waive that penalty by accepting the dues. Jennings v. Chelsea Division Benefit Fund Society, 28 Misc. Rep. 556. The judgment should be reversed, and as there is no dispute as to the facts, with costs to the appellant.

Freedman, P. J., and Leventbitt, J., concur.

Judgment reversed, with costs to appellant.  