
    (69 Hun, 532.)
    FITZGERALD v. BURDEN BENEVOLENT ASS'N OF CITY OF TROY.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    1. Benevolent Societies—Membership—Eligibility.
    The constitution of a mutual benefit association provided (article 1, § 3) that the membership of the association shall be unlimited. Article 5, § 1, under the title “Membership,” provided that this association shall be open to any employe of the B. Iron Company who shall have attained the age of 18, and is not over 50, who is sound in health, of good moral character, and able to support himself and family. Held, that a person not an employe of the B. Iron Company was not eligible to membership in such association.
    2. Same—Admission of Ineligible Person.
    Where such association admits to membership a person not eligible thereto, the corporators are not bound by the illegal act, and the association is not liable to such member for benefits.
    Appeal from Rensselaer county court.
    Action by James Fitzgerald against the Burden Benevolent As. sociation of the City of Troy to recover disability benefits alleged to be due plaintiff as a member of defendant association. From a judgment of the county court affirming a judgment of the justice’s court in favor of plaintiff, defendant appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    R. A. Parmenter, for appellant.
    John P. Curley, for respondent.
   MAYHAM, P. J.

The appellant is a corporation organized according to law, and as such has adopted a constitution and bylaws for its government. By section 3 of article 1 of its constitution it is provided the membership of this association shall be unlimited. By section 1 of article 5 of the same constitution it is provided as follows, under the title “Membership

“This association shall be open to any employe of the Burden Iron Company who shall have attained the age of eighteen, and who is not over fifty years of age, who is sound in health, and of good moral character, and able to support himself and family.”

It is quite apparent that this latter provision limits and qualifies the provisions of section 3 of article 1 to the class of persons mentioned in article 5, and that within that class of persons membership is, by section 3 of article 1, unlimited. No negative words or words of restriction are required in section 1 of article 5 to authorize that construction. The maxim, “expressio unius est exclusio alterius,” clearly applies in the construction of that section, and a person not an employe of the Burden Iron Company would not, under this constitution, be eligible to membership. But, independently of this rule of construction of the two sections above quoted, it is manifest from the whole tenor of the constitution and bylaws of this association that it is confined in its membership to the employes of that company. We are of opinion, therefore, that the respondent was ineligible as a member of this association; and this brings us to the consideration of the question of the effect of the illegal admission by the association of one not eligible to membership when the subject of benefits arises between such member and the association.

Did this corporation, as such, bind itself by its illegal act, so as to be compelled to pay benefits to one not eligible to membership? Upon this subject we are cited to authorities containing the familiar principle that an individual acting sui juris can waive a statutory, or even a constitutional, provision in his own favor affecting his own property or alienable rights not involving considerations of public policy. Phyfe v. Eimer, 45 N. Y. 104. This is doubtless true, but acts by an individual which would be waivers of a reserved right, and which would be an estoppel as to him, would, when performed by a corporation which derives its existence from, and can only act under and within, its charter, be ultra vires, and not binding upon the corporators without their individual consent. If, therefore, this corporation received a member not eligible, in violation of its charter, it is difficult to see how it could bind the corporators by that act in the nature of an executory promise to pay benefits to one not entitled to become a member. I think, therefore, that judgment of the justice in awarding the respondent benefits, and that of the county court in affirming such judgment, were erroneous, and that both of said judgments should be reversed.

Judgment of the justice and that of the county court reversed, with costs. All concur. .  