
    Rose Leahy, as Administratrix, Etc., of Nicholas Burns, Deceased, Appellant, v. William J. Mooney, as President of Catholic Benevolent Society, Attached to St. Martin of Tours Church, Belmont, New York City, Respondent.
    Appeal from a judgment of the Municipal Court, second district, borough of The Bronx, in favor of the defendant.
    Henry K. Davis, for appellant.
    D. S. Voorhees, for respondent.
   Clarke, J.

Action brought by the administratrix of Nicholas Bums, deceased, who was at the time of his death, and had been for upward of fifteen years prior thereto, a member of the Catholic Benevolent Society attached to St. Martin of Tours Church,- Belmont, New York city, an unincorporated association consisting of more than seven members, of which society the defendant, William J. Mooney, was president, to recover the sum of seventy-five dollars as funeral expenses claimed to be due upon the death of said Burns, under the constitution and by-laws of the society. By article 1 of the constitution it is provided: “ The object of this society is to afford mutual benefit and assistance in cases of sickness or accident, and to give a decent burial to any deceased member, and furthermore to show in our every word and act Friendship, Unity, and True Christian Charity. Friendship in assisting each other to the best of our power; Unity in uniting -together for mutual support in sickness and distress: True Christian Charity by doing to each other as we would wish they should do unto us.” Article 4 of the by-laws is entitled “ Benefits; ” section 3 thereof provides: “ In case of death of a member the sum of seventy-five dollars shall be appropriated for funeral expenses. In the absence of competent relatives or friends, the President shall take charge of the funeral and keep an account of the expenses.”

Article 5 is entitled, Eights of Members, and Duties. Section 3 thereof provides: “Any member failing to pay his dues, fines, taxes or other assessments or any other indebtedness for the space of three months, will not be entitled to any benefits for three months after paying up such arrears.” Other provisions provide for monthly dues and fines for nonattendance at the quarterly meetings of the society and for not performing religious duties at Easter and Christmas. At the time of his death Nicholas Bums had paid his regular monthly dues, so that there was no period in which his arrears for dues had extended over more than two months. But defendant claims that for nonattendance at a quarterly meeting and at the Easter and Christmas celebrations he had incurred fines which had not been paid and which had been due and unpaid for more than the period provided in the by-laws, and hence the right to receive the funeral benefit had been forfeited.

It was in evidence that Burns had been seriously ill for a great part of the time for two years, and that on the days of the quarterly meeting and Christmas and Easter he had been too sick to leave the house. It was in evidence also that the society was in the habit of remitting fines when sickness had prevented attendance. Nevertheless the society insists that by the failure of Burns to pay two dollars for fines alleged to be due for more than three months he had forfeited the right acquired during fifteen years’ membership of the society to have seventy-five dollars appropriated from its funds to help give him decent burial. The Appellate Division held in Hess v. Johnson, 41 App. Div. 465, “ That constitution is the contract between the parties, and if its provisions are not illegal, immoral or contrary to public policy, it must be upheld, whether reasonable or not, for parties have the right to enter into unreasonable or unwise contracts so long as such contracts are not illegal and are fairly made. This is the distinction between the case of a voluntary association and that of a corporation.” So that if these fines had in accordance with the provisions of the by-laws been legally imposed the dismissal of the complaint below was right. Section 2 of article.6 of the by-laws provides, “All the members are required to go to their duties in a body twice a year, viz.: at Easter and Christmas. Eor not complying with this order a fine of one dollar will be imposed for each offense.” This language necessarily implies affirmative action either by the society at large at a meeting thereof or perhaps by the managing committee whose duties include the following : “ They shall investigate all delinquent cases and complaints and transact all important business connected with the society. They can remit fines.” By-laws, art. 8, § 5. There is no evidence that these fines were ever “ imposed ” by the society or its managing committee. The mere entry of the amount thereof in the books of the financial secretary is not enough. Again section 4 of article 4 of the constitution provides: Financial Secretary’s Duty. He shall keep a correct account of all receipts of the Society and notify members of their arrears. He shall collect all initiation fees, dues, fines and assessments, and pay the same over to the Treasurer, taking his receipt therefor.” Hot only is the case barren of evidence that these fines were ever properly imposed upon Bums, but it nowhere appears that he was ever notified by the financial secretary or any one else that they had been imposed, and while it does appear that two dollars and fifty cents for dues was collected of his wife shortly before his death, it does not appear that he was told that any sum was due for fines imposed for nonattendance at meetings or nonperformance of religious duties. If such notification had been given, an opportunity would have been afforded to have applied for remission on the established ground of physical disability, and said application, in accordance with the proved custom of the society, would have been granted. The society defends upon the strict letter of the constitution and by-laws and cannot be heard to complain if the same rigor is applied to prevent a forfeiture. The defense must fail because it does not appear that the fine was properly imposed and that notification thereof was ever—as provided in the by-laws—given to decedent.

Freedman, P. J., and Greenbaum, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  