
    Solomon Strasser, Resp’t, v. John L. Staats, as Noble Grand of Mount Hermon Lodge, I. O. O. F., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 4, 1891.)
    
    1. Associations—Odd Fellows—Death benefit—By-Laws.
    M. S. was a member of a lodge, an unincorporated'association of more than seven members, and under its by-laws, upon death, the next of kin were entitled to a funeral benefit. The by-laws stated the dues at a sum per week, and provided that the dues of a member “accrue weekly.” They also provided that no one in arrears for dues, etc., for more than thirteen weeks should be entitled to the benefits of the lodge until six weeks after all arrearages were paid. The custom: was that the dues were charged and collected quarterly. The deceased had paid the quarter due July 1, upon July 13. He died on August 4. Held, that the deceased was not in arrears at his death; the provision that dues “ accrue weekly” indicating only the rate at which they increased, and not being equivalent to “ payable weekly.”
    3. Same—Representatives of deceased member not bound by by-law AS TO TRIBUNAL TO DETERMINE DISPUTES.
    Where the constitution of a lodge provided that disputed questions must be passed upon by various tribunals in the order before recourse was had to the courts, and that if one did resort to the courts before all such remedies were exhausted, he thereby forfeited all claim to benefits, Held, that this provision applied only to members, and that the next of kin, who took by virtue of the contract of the lodge with the deceased member, and were not members thereof, could sue at once.
    Appeal from the judgment of the Albany county court, affirming a judgment of the city court of the city of Albany in favor of the plaintiff for fifty dollars ($50) and costs.
    The plaintiff is the assignee of the next of kin of Moses Strasser, deceased, who in his lifetime 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 Hermon 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) fifty dollars from the lodge. Moses Strasser, deceased, had been in his lifetime 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 its 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 thirteen 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 by-laws 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 each 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.
    
      J. W. Ecker, for app’lt; Jdosendale & Hessberg (Albert Hessberg, of counsel), for resp’t.
   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 bylaws which prescribes the ground of forfeiture of benefits, and which is as follows : “No brother who is in arrears for dues, fines or assessments of any kind over the amount of thirteen weeks, * "x" * 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 thirteen cents per week; rather than the other contsruction, 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 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.

No dues therefore at the time of the payment had been in arTears for thirteen 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 §§ 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 et al., 81 N. Y., 514; Poultney 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. Poultney v. Bachman, 31 Hun, 54. Does the same rule apply when the claim is made by a person not a member of the order, 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 or 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 non-member'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 he enforceable according to its terms, and not according to the subsequent adjudication of the lodge as to the meaning of its terms.

The provisions of the constitution that benefits “ shall be dependent upon and recoverable only through the methods provided in the constitution,” must mean jhat 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.

Learned, P. J., and Landon, J., concur.  