
    George Nagel, Resp’t, v. Joseph Glasburger, Treasurer, App’lt.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    Benefit societies — Acceptance of abbeabages — Effect of.
    An acceptance of the monthly dues by a benefit society on the 16th of the month is, no doubt, a waiver of a requirement that they be paid in advance, but is not a waiver of an express provision of its by-laws that if a member is in arrears when taken sick, payment of such arrearages shall not entitle him to benefits during such sickness.
    Appeal from a judgment of the county court of Monroe county, affirming a judgment of the municipal court of Rochester.
    
      D. C. Feeley, for app’lt; II. Pierce, for resp’t.
   Dwight, P. J.

The action was, under § 1919 of the Code of Civil Procedure, against the treasurer of an unincorporated association known as “ The Brewery Workingmen's Assembly, No. 1796,” to recover a “sick benefit” of three dollars a week for ten weeks, to which the plaintiff claimed to be entitled as a member of the association.

Art. IX of the by-laws of the association provides as follows: “ Every brother who has been a member of the assembly six months; who has promptly paid all dues * * * shall in case of sickness or disability from bodily accident * * * be entitled to receive the sum of three dollars a week for thirteen weeks during such sickness, if declared by sick committee unable to pursue his duties.” Section 5 provided also that “in case a brother is in arrears when taken sick or disabled he shall not by paying up his arrearages be entitled to benefits during such sickness.” And § 4 of article Y provides: “ The dues shall be thirty cents each month payable in advance.”

It is shown that the plaintiff was in arrears for the month of January, 1889; that he was taken side in that month; that his fees in arrears were paid on the 16th of that month, when his sickness was reported to the association, and that the committee took no action in his case for the reason that he was in arrears at the time he was taken sick.

Judgment of the municipal court in favor of the plaintiff was affirmed in the county court on the ground that it was a question of fact for the jury whether by receiving the arrearages of plaintiff’s dues on the 16th of January, the association did not “ waive the condition of its by-laws.”

We are not able to see that this view of the case was warranted by the facts. The acceptance of the January dues on the 16th of the month was no doubt a waiver of the requirement that they should be paid in advance, and restored the member to his standing in the association, so that for any future sickness, if he continued to pay his dues in the meantime, he would be entitled to his benefit. But it was no waiver of the express provision of § 5 of article IX, above quoted, to the effect that if the member is in arrears when taken sick, payment of such arrearages shall not entitle him to benefits during such sickness. The plaintiff must be presumed to have paid his arrearages for January in view of this provision of the by-laws which constituted his contract with the association. We can readily see how such a provision may be important in the management of an association of this character; But for it, members might often withhold payment of their dues so long as they continued in good health and pay only when in condition to claim a benefit. There could be no waiver of this provision of the contract by accepting payment of arrearages, because this provision expressly declares what the effect of such payment shall be.

Both the judgments below should be reversed.

Macomber and Corlett, JJ., concur.

Judgment of the county court and of the municipal court of Rochester reversed.  