
    Emily Biskupski, Respondent, v. Emil Pospisil, President of Jan Zizka Lozecislo 413, I. O. O. F., Appellant.
    (City Court of New York—General Term,
    March, 1894.)
    Where, at the final close of the case, the court, without motion by either party, takes the case from the jury and directs a verdict for the plaintiff, the evidence must be full, clear and sufficient to support such direction against the objection and exception of the defendant.
    Plaintiff’s husband was a member of the defendant organization, the constitution of which provides that a member who is expelled loses all right, title and interest in the property and funds of the lodge. In an action for death benefit the evidence tended to show that he had been expelled for contempt in refusing to appear and answer charges; that he appealed to the district grand committee, which reversed the action oi the lodge; that the lodge then appealed to the grand lodge, which reversed the decision of the district committee and restored that of the lodge. Held, that the decision of the grand lodge was binding on plaintiff's husband, and, therefore, on her, until disturbed by the sovereign grand lodge or set aside by the court for fraud or mistake; that the evidence was sufficient to require a submission of the case to the jury, and that it was error to direct a verdict for plaintiff.
    Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from order denying a motion for a new trial.
    
      Lcmgbein Bros. c& Lcmgbein, for appellant.
    
      August Li. Wagener, for respondent.
   McCarthy, J.

This is an appeal from a judgment entered on the verdict of a jury by direction of the court in favor of the plaintiff, and from an order denying a motion for a new trial.

The complaint was to recover the sum of $175 death benefit provided to be paid by the defendant, which was a lodge for such purposes, on the death of plaintiff’s husband, who was a member of the lodge.

The answer and defense was that some months previous to his death the plaintiff’s husband was expelled.

The defendant is a subordinate lodge of the grand lodge I. O. O. F.

The constitution and by-laws of the grand lodge and its subordinates are in evidence.

By article IV, section 2, the grand lodge has one general form of constitution for the government of all subordinate lodges, which shall be considered as the laws by which each subordinate lodge is to be governed in the transaction of its business, and it has a right to make by-laws.

Section 7 provides: “ The benefits provided * * * shall be dependent upon, and recoverable only through the methods provided in the Constitution, By-Laws, Rules and Regulations of the Order, to wit, trial in the Lodge, appeal to the Lodge, to the District Grand Committee, to the Grand Lodge, and, unless permission be refused by that body, to the Sovereign Grand Lodge.”

By article VIII, Trials, section 1, no member shall be put upon trial unless charges * * * shall be submitted to the lodge in writing signed by a member of the order.

By section 4 of this article it is provided: “ If the accused refuse or neglect to stand trial when duly summoned, the committee shall report him guilty of contempt of the Lodge, which report shall be conclusive, and the punishment shall be expulsion.’’ He may be represented by counsel, and tried as though present, if he so elect.

By section I of this article it is provided : “ Any member intending to appeal from the action of the Lodge shall * * * file with the secretary a notice of his appeal * * * the secretary shall forthwith send the notice, together with a certified copy of all charges, reports, evidence and proceedings of the Lodge relating to the case to the Grand Committee of the District.”

By article IV, section 8; it is provided: “ Whenever a brother ceases to be a member of this Lodge by reason of * * ■ * expulsion, * * his right, title and interest in and to the property or funds of this Lodge, or an'y part thereof, thereby become extinguished.”

The by-laws of the defendant were put in evidence and portions of the same were translated in evidence.

These provide as follows: “ Every member is entitled in case of his sickness, by which he may be disabled from following his usual occupation, to a sick benefit.

“Members of whom it can be proven that they have received sick benefit, claiming to be sick, and the fact being contrary, or otherwise using the funds of the Lodge, may be expelled.”

The plaintiff’s husband received benefit moneys, claiming to be sick. Charges were submitted to the lodge, signed by a member; he was notified, and put upon trial; he refused and neglected to attend, and for this contempt of the lodge he was expelled. The plaintifE’s husband then took an appeal from this action of the lodge to the district grand committee, which reversed the action of the lodge expelling him, and the lodge thereupon appealed from the decision of reversal to the grand lodge, which reversed the decision of the district grand committee, and sustained the action of the lodge, expelling plaintifE’s husband.

The journal of the grand lodge and the report of the committee on appeals to the grand lodge and other records and evidence showing all these facts were admitted in evidence.

The plaintiff can only recover jmovided the husband at the time of his death was a member of the defendant’s order in good standing, and in accordance with its constitution and by-laws.

If he was not such a member by his voluntary act or expulsion, she cannot recover.

It was obligatory on the plaintiff to prove that at the time of her husband’s death he was such a member, and there is no presumption to obviate this requirement, nor do I find in the case any affirmative evidence showing such'fact.

It may be said, however, that at the close of plaintifE’s case no motion to dismiss being made, that, therefore, the presumption is the plaintiff has made out a prima facie case.

This is so generally, but where at the final close of the case the court without motion by either party takes the case from the jury, and directs a verdict for the plaintiff, the evidence must be full, clear and sufficient to support such direction against the objection and exception of the defendant.

While we do not agree with the appellant’s counsel in many of his contentions on the law and to the 2-ules of evidence and the admission of documents, we think the2’e was sirfficient evidence of the fact that cha2-ges we2*e 2nade against Anton Biskupski, and that notice to attend before the proper t2’ial committee was give22 to him, and of his failure to attend and consequent expulsion ; Ms appeal to the dist2-ict grand committee, and their reversal of the decision of the lodge; also of the appeal of the lodge to the grand lodge of the state of Hew York, its reversal of the decision just stated, and .the restoration of and affirmance of the' original decision of the lodge of which Anton Biskupski was a member, which requires a submission of the case to the jury.

He was subject to the constitution and by-laws of this order, and by the same, as well as by his appeal, recognized and sub-, mitted himself to its judicial powers.

The report agreed to and resolution adopted was an adjudication by the grand lodge and binding on Anton Biskupski, and, therefore, on the plaintiff, his wife, until disturbed by the still higher appellate tribunal as provided by the constitution and laws, or set aside by the court for fraud or mistake.

Therefore, the learned justice erred in directing & verdict for plaintiff.

■ There was sufficient dispute which required it to be submitted to a jury.

For this reason the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Wyck and Uewburger, JJ., concur.

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