
    John Niemyjski, as Administrator of the Goods, Chattels and Credits of Joseph Mensky, Also Known as Joseph Niemyjski, Deceased, Respondent, v. Benjamin Schlessinger, as President of the International Ladies Garment Workers’ Union, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.)
    Benefit societies — amendment of constitution of — provision as to death .benefits —■ evidence.
    A member of a labor union at the time when its constitution was amended by the repeal of a provision as to death benefits will be presumed to have consented to such amendment .in the absence of proof that he ever paid any assessment for death benefits or any sum beyond his dues.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered against the defendant and from an order denying a motion for a new trial.
    Meyer London, for appellant.
    Anton Gronich, for respondent.
   Whitaker, J.

This action was brought to recover a death benefit claimed-to have become due upon the death of a member of the association in good standing, by the name of Joseph Niemyjski. ‘The International Ladies Garment Workers’ Union is a labor union. There is a central organization or union; there are also local subordinate unions. The local unions send delegates to the central or main organization which meets every two years. This central or main organization makes rules, "by-laws, etc., governing the local unions and their members. The central union reserves to itself the power to make by-laws for the local unions although the local unions have certain restricted powers to make by-laws not inconsistent with the by-laws or constitution of the central organization. Members of the local unions pay certain per capita dues to the central organization. This central organization is governed by an executive board. This central organization when in session had in 1911 and still has the right and power to change or amend its constitution. Section 15, article 3. Prior to the year 1911 at the time the deceased joined the local union, article 18 of the central organization provided for death benefits. The estate of any member of the local union who joined at the age of fifty or less and who continued a member for one year in good standing and was not in arrears with his dues, assessments and fines for more than three months, upon death was entitled to be paid" a certain amount of money. A four years’ membership entitled the estate of the deceased to receive $200. To meet this payment each member was to pay a special assessment of fifty cents in addition to dues. The death and accident benefits were to be raised by levying an assessment on the general membership. Section 3 of article 18 specifically provided that no death benefits shall be paid unless the claim has been submitted to and approved by the general executive board.” Section 4 required that claims for benefits against the International Union (the central organization) .should be filed with the general secretary-treasurer within thirty days after the same accrued, otherwise they were not to be paid. Prior to the year 1913 and a year before the death of Joseph Niemyjski, all the provisions providing for a death benefit were repealed. There is no evidence in the case that Joseph Niemyjski ever paid any death payment or that he ever paid any other sums than his dues; nor is there any evidence that Joseph Niemyjski or any one on his behalf ever complied with section 3, article 18, which required claims for death benefits to be approved by and submitted to the general executive board. The provision for the payment of death benefits was simply an incidental matter connected with the organization. It was not one of the purposes for which the society was organized as declared in the constitution. The association had power as is shown by its constitutions of 1911 and 1913 to amend its constitution. Joseph Niemyjski was a member and was equally bound by the provisions which authorized such amendments and when he became a member he was bound by the provisions of the constitution then in force including the provision allowing amendments. The rights of members, of an unincorporated association are governed by its constitution and by-laws. Joseph Niemyjski being a member of the association when the amendment to the constitution was made repealing section 18 which provided for death benefits is presumed, at least in the absence of evidence to the contrary, to have consented to the amendment inasmuch as he paid his dues for at least a year thereafter and remained a member.

When the constitution was adopted it became a contract by which each member was bound. Ranken v. Probey, 131 App. Div. 328; Belton v. Hatch, 109 N. Y. 593; O’Brien v. Grant, 146 id. 163. At the time of the death of Joseph Niemyjski there was no provision for payments of death benefits or the levying and collection of assessments for that purpose, and there is no evidence that Joseph Niemyjski ever paid any such assessment or any other sum beyond-his dues. Neither did Joseph Niemyjski comply or attempt to comply with the provisions of section 3 above referred to, which we think was a condition precedent. Clemens v. American Fire Ins. Co., 70 App. Div. 435.

Judgment should be reversed, with costs, and complaint dismissed, with costs.

Guy, J., concurs in result.

Judgment reversed, with costs.  