
    Pietro Masi, as Administrator of Felice Masi, Respondent, v. Congrega San Donato di Mutuo Succorso, Appellant.
    (Supreme Court, Appellate Term,
    July, 1896.)
    Benevolent societies — Forfeiture of benefits. -
    Under the .provision in the constitution of a benevolent society that a member “ failing to pay his monthly dues and other dues for three months shall be considered in default and in case of illness will not be entitled to sick benefits,” and for expulsion in ease of a continuance of the default after notice, a forfeiture of benefits or expulsion cannot be predicated upon a default in payment of the other dues alone.
    Appeal by defendant from a judgment in favor of plaintiff for $140 and costs, rendered by the justice of the Second District, Court, in an action to recover for certain payments for funeral expenses and sickness alleged to be due by reason of the membership of deceased in the defendant society.
    Benjamin E. Hall, for appellant.
    John Palmieri, for respondent.
   Daly, P. J.

- It was stipulated on the trial that if the plaintiff made out a case that the deceased was a member in good standing- and subject to none of the liabilities imposed by the constitution, plaintiff was entitled to recover $140, which included $107 for death and funeral expenses, and $33 for sick benefits from November 1 to December 3, 1895, the date of death. Payment is; resisted under the thirty-eighth section of the constitution which reads: “Any member failing to pay his monthly dues and other dues for three months shall be considered in default, and, in case of illness, will not be entitled to the sick benefits. ' In case a member-is indebted over three months the financial secretary shall so inform the corresponding secretary, who shall notify the defaulting member by letter of his default, and if such a member shall continue to be in default within the two months thereafter he shall forfeit his rights, including that of attendance from the doctor, and in case of sickness he shall be considered as having resigned and Ms name cancelled from the mémbership roll.”

As the appellant puts it, the questions to be answered under this section are: (1) Did the corresponding secretary notify the deceased that he was in default? (2) If so, had he, at the time of such notice, been in default for three months for any dues or assessments? (3) Did he continue in default for a further period of two months after-such notice? This is correct except as to the second question. Under the section quoted it should be: “ Was the deceased, at the time of such notice, in default for three months -for dues and assessments? ” For the notice was not to be sent to a member unless indebted upon both accounts. The default of which he is to be notified after tMee months, as required by the second sentence of the section, is undoubtedly that mentioned in the preceding sentence, which is the failure to pay monthly dues and other dues for three months.

Benefits were forfeitable, therefore, if- a member failing to pay his monthly dues and other dues for three months should, after notice from the corresponding secretary, continue in default for two months thereafter. Notice from the corresponding secretary is thus made a .condition precedent to forfeiture, and this notice could not be given until a member were in. default for three months for the indebtedness specified. Defendant gave evidence of a notice sent to deceased on. July 18 and August 1, 1895, but these notices contained nothing as to default in payment -of monthly dues for the simple reason that the deceased had paid his dues to August 1, and nothing was due on that account at the time of the notices. It was not until October, 1895, that the notice required by section 38 of the constitution' could have been given to the deceased,. providing that he failed to pay Ms monthly dues for August, September and October. But no such notice was given and the' forfeiture of his rights was not effected. In September a tender was made by the plaintiff sufficient to pay' his' monthly dues for two months and something on account of his other indebtedness, which was refused,, and he was dropped from membership in October following* under the impression, on the part of the officers of the society, that the notices of July and August justified their action.,' This was an error", and' the justice correctly held upon the evidence that the' plaintiff was entitled to recover the .whole sum of $140 under the stipulation.

Judgment should he affirmed, with costs. Under this view of the plaintiff’s rights the exceptions as to rulings upon testimony are-immaterial and no ground for reversal is shown.

MoAdam and' Bischoff, JJ., concur.

Judgment affirmed, with costs.  