
    Seligman Baer, Resp’t, v. Hudson River Permanent Savings and Loan Association, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 1894.)
    
    1. Appeal—Conflicting evidence.
    Where the jury finds upon conflicting evidence the appellate court will not hold that their verdict was not justified by the evidence.
    3. Benevolent associations—Application to witildeaw funds.
    A subsequent application to withdraw funds from an association, at the latter’s suggestion, does not estop the member from claiming under a previous application.
    Appeal from a judgment rendered by the Monroe county, court on the 19th of December, 1892, in favor of the plaintiff against the defendant, and from an order denying a motion for a new trial upon the minutes.
    
      E. G. Werner, for app’lt; H. J. Stull, for resp’t.
   Lewis, J.

The defendant is a domestic corporation duly organized and incorporated under the laws of the state of New York. Its members pay in at stated periods dues; it is provided in its articles of association that any of its members not having received a loan may at any time, on written application to the board of directors, draw from dues paid by him all or any part thereof, the same to be paid after all prior applications for loans and withdrawals have been satisfied.

The plaintiff was, on the first day of April, 1892, a member and shareholder of the defendant, and as such held shares of stock upon which there had accumulated at that time in dues and dividends the sum of $152. There was at the time of the commencement of the action that sum to his credit on the books of the defendant in dues paid .in by him exclusive of the dividends paid thereon. He had, prior to the 1st of April, 1892, received two loans from the defendant, but they had been paid, up and cancelled, and he had not received any other loan, so that he was entitled to withdraw from the association the amount of money claimed in his complaint, if he did, as claimed by him, give the proper notice to defendant on the 1st day of April, 1892.

That was the principal and main question litigated upon the trial. The plaintiff testified positively to making such an application on that day at the office of and upon the books of the association, pursuant to its rules and regulations, by a Mr. Hertel, one of the trustees, and that Hertel made the proper entry upon the books and signed the plaintiff’s name thereto at his, plaintiff’s request. Other witnesses were called by the plaintiff who gave evidence tending to corroborate his contention.

Mr. Hertel was called, as witness of the defendant and flatly contradicted the plaintiff’s testimony. Other witnesses gave testimony tending to controvert the plaintiff’s contention. The books of the defendant were produced at the trial; and upon inspection thereof, the plaintiff’s application did not appear to be entered, but it did appear that an entry was made npon the books on the day that the plaintiff testified his application was entered, which entry appeared to have been erased. Whether it was the plaintiff’s application that was erased was a subject of conflicting evidence. The jury found upon conflicting testimony in plaintiff’s favor, and we cannot say that their verdict was not justified by the evidence.

Whether the plaintiff made the application in April being a matter of dispute between the parties, at the suggestion of the defendant he made another application in October, 1892. If 'the last application was made under the circumstances as related by the plaintiff, it did not, we think, stop him from claiming under the previous application made in April. As the plaintiff did not base his claim to recover upon the October application, but under that of April, and it being conceded upon the trial that if the application was in fact made in April, the sum claimed was due before the commencement of the action, it was immaterial whether the amount claimed was due if the claim was in fact, made in October and not in April as contended by the defendant.

We have examined the defendant’s exceptions and find nothing in them calling for a new trial.

The judgment and order appealed from should be affirmed. Dwight, P. J., and Haight, J., concur.  