
    Warren Teator, Respondent, v. New York Mutual Savings and Loan Association, Appellant.
    
      Savings and loan association — burden of proof as to the existence cf money applicable to the pa/yment of the withdrawal value of shares sought to be withdrawn.
    
    A member of a savings and loan association, who brings an action against the association to recover the withdrawal value of his shares, must establish that the receipts of the association, applicable to the payment of withdrawing shares, were sufficient for the payment not only of the plaintiff's shares but also for the payment of all shares of the withdrawal of which the association had been notified prior to the time when the plaintiff’s notice of withdrawal was served.
    Evidence insufficient to warrant a finding that the plaintiff had successfully sustained this burden of proof, considered.
    Kellogg and Edwards, JJ., dissented.
    Appeal by the defendant, the New York Mutual Savings and Loan Association, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 25th day of October, 1900, as “ ordered and adjudged that Warren Teator, plaintiff, recover of the New York Mutual Savings and Loan Association, defendant, the sum of $342.36, being the sum awarded to said plaintiff by the verdict of the jury, together with $75.15, plaintiff’s costs as taxed, making in all $417.51, and that said plaintiff have execution therefor against the defendantand also from an order, entered in said clerk’s office on the 24th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes. •
    Upon January 1, 1896, this plaintiff became a member of the defendant association by taking ten shares of stock therein, upon each of which he was to pay sixty cents per month. The shares were to mature when the. payments, together with the apportioned profits, should become of the value of $100 each. At the time plaintiff became a member there was a provision in the articles of association anthorizing'him to give notice of á withdrawal from said association by surrendering his certificate and giving thirty days’ notice in writing to the secretary, when he should “ be entitled to receive the amount paid as monthly dues with six per cent interest for the average time such payments have been with the association to the date of filing such notice, less a withdrawal fee of $1.00 per share.” Upon May 18,1900, the plaintiff made application for withdrawal; he received ■ nothing from the defendant, and upon the 7th day of September, 1900, commenced this action.
    Further facts appear in the opinion.
    
      Wm. Hepburn Russell, Wm. Beverly Winslow and John E. Ruston, for the appellant.
    
      John L. Crandell, for the respondent.
   Smith, J.:

.This judgment can only stand upon the finding. of the jury that at the time of the commencement of this action the association had on hand funds sufficient for the payment of plaintiff’s certificate and applicable thereto. Not only must there have been funds sufficient for the payment of the plaintiff’s certificate, but also for the payment of all certificates of the withdrawal of which the defendant had been notified before May 18, 1900, when- plaintiff’s notice ■ was" served.' The defendant contends that this finding of the jury was unwarranted by the evidence. Article 16 of defendant’s articles of association reads-: “ Séc. 1. The monthly receipts from dues and interest to the credit of the Loan Fund shall be divided as follows between matured and withdrawing shares: Ninety per cent shall be ■ ■applicable for the redemption of matured share's and- ten per cent for withdrawing shares. * * * Any funds not applicable as above shall be used to meet approved loans.” By the evidence of defendant’s assistant cashier, called as a witness by the plaintiff, it appeal’s that ten per cent of the-defendant’s total receipts in the month of May, 1900, was ¡$3,386.61; in the month of June, $7,980.05; in , the month of July,.$6,834; in the month of August, $4,101.0.5. This aggregates $22,309.71, which, under the articles of association, was primarily applicable to the payment of the withdrawal shares from the eighteenth of May to the commencement of this action. But upon May eighteenth, when the plaintiff’s notice of withdrawal was served, notices of withdrawal of shares had been theretofore served, upon which was payable the sum of $169,000 and upwards. As these moneys were payable before the plaintiff was entitled to his payment, it is clear that if the ten per cent only were applicable to the payment of withdrawal shares, the plaintiff has failed to prove that the association has funds on hand sufficient for the payment of his claim and applicable thereto.

But plaintiff claims that under the authority of the directors the association was disregarding this ten per cent limitation and was applying all receipts to the payment of withdrawal shares. He then argues that prior to September seventh, the time of the commencement of this action, if ten per cent of the receipts amount to $22,309.71, the total receipts amount to $223,097.10. Granting for the argument that the directors have authorized the disregarding of the ten per cent limit and this sum of $223,000 constituted the total receipts of the association, some part thereof was due to the reserve fund, no part of which was applicable to the payment of withdrawal certificates. While the proof is that in Hay, 1900, there was no-matured share unpaid, no evidence in the case indicates whether any or how many shares matured between that time and the commencement of this action which were properly chargeable to this fund. It appears that at the time of the commencement of this action there was on hand in the corporation only about $4,000, and of the $169,000 due upon withdrawing shares prior to the plaintiff’s right, $58,000 at that time remained unpaid. There is no evidence that any part of this $223,000 of receipts has been improperly expended. In the absence of such proof, with $4,000 only in the treasury and $58,000 due upon withdrawing claims which were of prior right, the jury was not authorized to find that the association Bad on hand funds sufficient for the payment of plaintiff’s claim and applicable thereto.

Again, no resolution of the directors is shown authorizing the application of more than ten per cent of this fund to the payment of withdrawal shares. The only proof upon which the plaintiff can rely to establish that an application of a greater percentage was authorized is the fact that a greater percentage was paid under the authority of the general manager with the presumed knowledge of the board of directors. While from these facts may be inferred an authority to exceed the ten per cent limit in the application of funds to the withdrawing shares, it is difficult to see how any authority can be inferred therefrom to make any further application than was in fact made. But this greater authority the plaintiff needs, to show that the funds, even if on hand, were applicable to the payment of his claim. Not only is such greater authority not proven, but it seems to be fairly negatived by the evidence. From the evidence of Bobbie, the one, witness called upon the subject, the conclusion is clearly read that the association has dedicated to the payment of the withdrawing shares the full sum which was available therefor and the full- sum which they were authorized so to dedicate by the board of directors. We think the plaintiff’s cause of action was not proven.

All concurred, except Kellogg and Edwards, JJ., dissenting.

Judgment, so far as appealed from, and order reversed and new trial granted, with costs to appellant to abide event.  