
    Louis Roeding, Resp’t, v. The Sons of Moses, App’lt.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed December 1, 1890.)
    
    Benefit societies—Estoppel.
    The by-laws of defendant provided that the members should pay dues quarterly in months specified or in the following meeting of the directors; that failure to pay at the legally specified times forfeited all claims on the society, but the member was entitled to all rights as soon as he was clear in the books, and that the regular meetings of the board should take place on a Sunday in the middle of the months specified and also monthly. A few days before the death of a member a check for his dues for two quarters was sent to defendant’s secretary, who returned it the following day, stating he had no authority to receive dues, and subsequent tenders in cash were made and declined on the same ground. The member died before the next meeting of the board. It appeared on the trial that the secretary had habitually recéived dues from the members and paid them to the society. Held, that defendant was estopped to deny the authority of the secretary, and that the member was clear in the books when he died.
    Appeal from judgment of the sixth district court in favor of plaintiff.
    IK B. Spooner, for app’lt; L. S. Phillips, for resp’t.
   Prtor, J.

Appeal from judgment of a district court in favor of plaintiff.

Action by an assignee to recover of defendant, a benevolent society, $250, to which the assignor claimed to be entitled as widow of a deceased member of the society. The claim was valid if the deceased member had complied with provisions of the society’s by-laws now to be considered. Art. IV., § 1: “ Each member shall pay $4.00 dues at the end of each quarter, in the months of March, June, September and December, or in the following meeting of the directors.”

Sec. 4. “A member who fails to pay his dues at the legally specified time forfeits all claims on the society, with the exception of the burial ground. He is entitled to all rights as soon- as lie is clear in the books.”

Art. XIH., § 1: “ The regular general meetings shall take place on a Sunday in the middle of the months of December, March, June and September. There shall also be held a board meeting monthly.”

It is conceded in respect of the two quarters ending in June and in September, 1888, that when he died no part of the eight dollars then due had been actually paid to the society, and the question is, had he done that which was the legal equivalent of payment, or was he “clear in the books?” He had done this: the two quarters having elapsed without payment by the deceased, notices to pay those dues were sent to him by the secretary of the society. October 14th, a son of the deceased, on his behalf, sent a chock for eight dollars, the amount of the dues for two quarters, to the secretary of the society. Next day the secretary returned the check, with a letter stating that he had no authority to accept dues from members, which must be paid at meetings of the society .or at meetings of the directors, and that the next meeting would be held in the ensuing ¡November. The secretary admitted that he was In the habit of receiving dues from members, but this he did as a favor and not under the authority of the by-laws. It appeared that this son of the deceased, made other tenders in cash to the secretary, which, however, he declined to receive on the game ground. The deceased died October 25, 1890. At his death was he “ clear in the books ? ” The secretary had no authority, under the constitution or by-laws, to receive dues from members. As-member of the society the deceased was chargeable with notice of the by-laws; when he attempted, by his agent, to pay his dues, he did so by tender to a person without actual authority to accept it; and so, it is said, he died in default to the society. But, it is answered that the society is estopped to deny the authority of the secretary, by his habitual practice in receiving dues from members. That such was his practice is incontrovertible upon the evidence. A practice so habitual and so long continued, aided by the fact that the dues received by the secretary were paid by him to the society, raises a presumption, if not that the by-law requiring the treasurer to receive all moneys had been tacitly abrogated, at least, that such practice of the secretary was known and ratified by the society. This presumption is not rebutted by a particle of proof; and so the defendant was estopped by the apparent authority which it communicated to its agents. ,

The distinction which the secretary draws between his official and his individual character, saying that he received dues in the latter and not in the former capacity, is one which, existing only in his own consciousness, could not be perceived by those who-put the money in his hands. To suffer its secretary habitually to receive and pay to it dues from members, without objection that he has no authority so to do, and then, when by the death bf a member his error is irreparable, to deprive the widow of her pittance on the pretext that the tender was to the wrong person, is an injustice which the courts will be astute to avert. The argument of the defendant’s counsel, that the secretary apprised the deceased of his lack of authority to receive dues, is without force, since he did so on the 15th of October, the day after the tender.

Appellant urges that the tender of payment was not made at the “ legally specified time,” as prescribed by the by-laws ; but the answer is obvious, that this time is too uncertain and indeterminate to justify a forfeiture for failures to ascertain it.

¡For near forty years the deceased had been contributing to the treasury of the society, and it woiüd be the extreme of injustice to deny his widow the small provision because eight dollars were not tendered on the very day of payment.

The deceased was “ clear in the booksbut if not, it was the fault of defendant.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischofe, J., concur.  