
    James Fitzgerald, Respondent, v. Burden Benevolent Association of the City of Troy, Appellant.
    
      Incorporated benefit association — eligibility to membership limited — an ineligible person admitted to membership not entitled to payment of benefits.
    
    A section of tlie constitution of “ The Burden Benevolent Association of the City of Troy,” an incorporated benefit association, provided that “The membership of this association shall he unlimited; ” a subsequent section provided that “ This Association shall be open to any employee of the Burden Iron Company, who shall have attained the age of eighteen, and who is not over fifty years of age. who is in sound health and of good moral character, and able to support himself and family.”
    
      Held, that the maxim expressio unius est exclusio alterius applied; that, consequently, the latter section-limited and qualified the former one; and, hence, that a person who was not an employee of the Burden Iron Company was not, under the constitution, eligible to membership;
    That the ultra vires act of the corporation in admitting to membership a person ineligible under its constitution did not bind the corporators so as to bind them to pay benefits to such person.
    Appeal by tbe defendant, tbe Burden Benevolent Association of tbe City of Troy, from a judgment of tbe County Court of Rensselaer county, entered in tbe office of tbe clerk of that county on tbe 21st day of December, 1891, affirming a judgment of tbe Justice’s Court of tbe city of Troy in favor of the plaintiff.
    Tbe action was brought to recover weekly benefits, amounting to twenty dollars, to which the plaintiff claimed to be entitled by virtue of membership in tbe defendant association.
    On the trial, it was admitted by plaintiff that, at the time be was admitted as a member of tbe defendant association, be was not and bad never been since in tbe employ of the Burden Iron Company. It was- admitted by tbe defendant that tbe plaintiff was proposed for membership on tbe 21st of June, 1890, and was admitted as a member on July 19, 1890, and bad paid bis initiation dues, and was not indebted to tbe association for fines or dues; that on tbe 25th day of April, 1891, be was injured, and for such injuries, if be was a member of defendant, he would be entitled to tbe sum of fifteen dollars benefit for which be could recover in this action; and that at the time be applied for membership in defendant be made no false representations.
    
      P. A. Parmember, for tbe appellant.
    
      
      John P. Gurley, for the respondent.
   Mayham, P. J.:

The appellant is a corporation organized according to law, and as such has adopted a constitution and by-laws for its government.

By section 3 of article 1 of its constitution it is provided the membership of this association shall be unlimited.

By section 1 of article 5 of the same constitution it is provided as follows, under the title “ Membership : ” “ This Association shall be open to any employee of the Burden Iron Company, who shall have attained the age of eighteen, and who is not over fifty years of age, who is in sound health and of good moral character, and able to support liimself and family.”

It is quite apparent that this latter provision limits and qualifies the provisions of section 3 of article 1 to the class of persons mentioned in article 5, and that within that class of persons membership is, by section 3 of article 1, unlimited.

■ No negative words or words of restriction are required in section 1 of article 5 to authorize that construction. The maxim exypressio v/nius est exclusio alterius clearly applies in the construction of that section, and a person not an employee of the Burden Iron Company would not, under this constitution, be eligible to membership.

But independently of this rule of construction of the two sections above quoted it is manifest from the whole tenor of the constitution and by-laws of this association that it is confined in its membership to the employees of that company.

We are of opinion, therefore, that the respondent was ineligible as a member of this association; and this brings us to the consideration of the question of the effect of the illegal admission by the association of one not eligible to membership when the subject of benefits arises between such member and the association.

Did this corporation as such bind itself by its illegal act so as to be compelled to pay benefits to one not eligible to membership % Upon this subject we are cited to authorities containing the familiar principle that an individual acting sui juris can waive a statutory or even a constitutional provision in his own favor affecting his own property or alienable rights not involving considerations of public policy. (Phyfe v. Eimer, 45 N. Y. 104.)

This is doubtless true, but acts by an individual which would be waivers of a reserved right, and which would be an estoppel as to him, would, when performed by a corporation which derives its existence from and can only act under and within its charter, be ultra vires and not binding upon the corporators without their individual consent.

. If, therefore, this corporation received a member not eligible, in violation of its charter, it is difficult to see how it could bind the corporators by that act in the nature of an executory promise to pay benefits to one not entitled to become a member.

I think, therefore; that the judgment of the justice in awarding the respondent benefits, and that of the County Court in affirming such judgment, were erroneous, and that both of said judgments should be reversed.

Putnam and Herrick, JJ., concurred.

Judgment of justice and that of County Court reversed, with costs.  