
    John G. Stack, Individually and as Administrator, etc., of Cornelius Lawrence, Deceased, Appellant, v. Edward Williams, as President of Washington Camp No. 10, Patriotic Sons of America, Respondent.
    Second Department,
    January 8, 1915.
    Insurance — fraternal benevolent association — by-laws construed — failure to show waiver of forfeiture under by-laws.
    Action against a fraternal society to recover moneys alleged to be due on the death of a member. It was contended on the part of the defendant that under the by-laws the plaintiff was entitled to no benefit in that the member whom he represented had defaulted in the payment of dues. The plaintiff, however, contended that by custom the defendant waived the forfeiture of delinquent members. By-laws construed, evidence examined, and held, that there was no evidence of waiver raising a question for the jury, and that a judgment dismissing the complaint should be affirmed.
    Appeal by the plaintiff, John Gr. Stack, individually and as administrator, etc., from a judgment of the City Court of Yonkers, entered in the office of the clerk of said court on the 9th day of June, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Albert C. Jordan, for the appellant.
    
      Lee Parsons Davis, for the respondent.
   Thomas, J.:

Lawrence died at a time when he was a member of the defendant society and debtor to the plaintiff, who was appointed as administrator. Decedent left a son, who transferred his claim against the defendant to Stack, who brings this action. The by-laws of the society give a member a certain status if he keep up his dues, another status if he is delinquent, and still another status if he has been delinquent thirteen weeks. This action involves the third condition. If he be in good standing at the time of his death, there is payable to his nearest of kin, or whomsoever he may have designated, one hundred dollars in case of death prior to six months from initiation, or two hundred and fifty dollars in case of death after six months therefrom. Such is the provision of section 3. Section 5 of article IX, for present purposes, definitely determines what' is good standing. “Any member indebted to this Camp to the amount of thirteen weeks’ dues shall be considered out of benefits, and cannot become beneficial again, or his heirs or assigns in any way hold this Camp responsible, except as hereafter provided, until three months shall have elapsed from the date of the payment of his back dues. In the event of the death of a member out of benefits, or who has allowed his dues to lapse for thirteen weeks, and three months having not expired since the payment of his back dues, then in that event his legal representatives shall be entitled to receive, and the Camp shall pay to the same the sum of Ten Dollars ($10.00).” By this section a person may be delinquent in his dues and remain a member of the society, and if he die his representative is entitled to ten dollars. But if, in the course of his membership, he remain delinquent for thirteen weeks, his status becomes such that he is out of benefits and does not become . qualified for them until the lapse of three months from the date of the payment of his back dues, except as to the ten dollars. The decedent in the present case was out of benefits under this section. It appears that on September 25, 1913, he was indebted in the sum of two dollars and five cents, and that on the following October second he was in arrears two dollars and fifty cents, whereon he paid at that time one dollar, leaving a balance of one dollar and fifty cents, which was paid on October sixteenth. He died in the following November. On October sixteenth, when he paid up, he was in arrears sixteen weeks. The by-laws provide: “Section 5 [article VII]. The weekly dues of this Camp shall be fifteen cents.” The plaintiff urges, first, that in practice it was the custom to allow the dues to be paid quarterly; second, that the by-law purporting to require payment of weekly dues did not require them to be paid each week. The record shows that a member could pay as he would without affecting his membership, unless section 7 of article VII, providing for dropping him" from the roll, were invoked. Delinquency did not otherwise affect his membership, or deprive his beneficiary of the right to recover a certain insurance. But if the delinquency amounted to thirteen weeks and had not been cured by the expiration of three months after payment, no larger sum was recoverable. Therefore, it is incorrect to conclude that the society permitted the decedent to be delinquent and so waived it as to enable his beneficiary to collect the larger insurance. If it could be shown that the society had allowed members to pay as they would in disregard of the provisions of section 5, and had commonly paid the larger benefit to their beneficiaries so that the jury could conclude that the decedent had been influenced by that practice, it might have been a question for the jury. The court did submit to the jury the question whether there had been a waiver on the part of the society, but the verdict was against the plaintiff. It is urged that there was error in the refusal to charge that the burden of showing forfeiture was upon the defendant, but coupled with that was the request that defendant “must show that it has fully complied with its Constitution and By-Laws in fin's case.” It is also said that there was error in the refusal to charge that the fact that the defendant on previous occasions waived the forfeiture allowed under section 5 of article VIH “should be considered as strong corroboration of a waiver of forfeiture at this time.” As already stated, the record shows that there was no evidence of relevant waiver. The court was quite correct in declining to charge that the by-law exacting a weekly payment of fifteen cents did not fix the time of payment. There was no question of fact to go to the jury, and the defendant was entitled to a dismissal of the complaint.

The judgment and order should be affirmed, with costs.

Jenks, P. J., Burr, Stapleton and Rich, JJ., concurred.

Judgment and order of the City Court of Yonkers affirmed, with costs.  