
    Samuel Goldberger, Respondent, v. United States Grand Lodge, Order Brith Abraham, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1912.)
    Associations — by-laws and regulations — powers and rights of — membership— expulsion of member — grounds.
    Under a provision governing subordinate lodges of a fraternal (order, that a member who has not paid his dues shall be notified by the secretary of the lodge hy registered mail and that whenever any laws may require notice to be mailed to members such mailing shall be sufficient for all purposes if addressed to the member at his last place of residence or business, a notice of nonpayment of dues sent hy registered mail to plaintiff at his last known address in New York city is sufficient though the secretary of the lodge knew at the time he mailed the notice that plaintiff and his wife, who was also a member of the order, had gone to Hungary to live.
    Where plaintiff was expelled from membership in the order for nonpayment of his quarterly dues and the nonpayment of an illegal assessment he was hound in order to save his rights to tender the amount of his dues.
    Seabtjby, J., dissents.
    Appeal by defendant from a judgment in favor of plaintiff, entered in the Municipal Court of the city of Uew York, borough of Manhattan, second district, after a trial before a judge without a jury.
    Goldfogle, Cohn & Lind, for appellant.
    Alfred B. Jaworower, for respondent.
   Bijur, J.

Plaintiff, a member of a fraternal order, sues for a death benefit alleged to be due to him by reason of the death of his wife, who was also a member of the order.

The defense is default in the payment of dues and the consequent striking off of the names of both plaintiff and his wife from membership in the order after notice sent by the secretary in accordance with the constitution and by-laws of the order.

The controversy turns upon the construction to he given to section 2, article VII, of the “ General Laws for Lodges “A member who has not paid his dues * * * shall be notified by the secretary of the lodge by registered mail” It is further provided that if he fails to pay by the next meeting he shall be stricken from the roll. In connection with this provision must be read section 15 of the same article: “ Whenever any laws may require notice to be mailed to any members, such mailing shall be sufficient for all purposes if addressed to the member at his last known place of residence or business.”

It is conceded that, when the notices in the case at bar were mailed by the secretary by registered mail, they were addressed to the last known address of plaintiff and his wife respectively in this city, and that the secretary knew at the time he mailed the notices that both parties had gone to Hungary to live, but that he did not know their address there, nor the address of their son, who, plaintiff had told the secretary, would pay their dues.

The learned judge below based his decision in favor of plaintiff exclusively upon the insufficiency of the notice under these circumstances. He interprets the language of section 2 to require actual personal notice, and cites as authority for his ruling the case of Weinberg v. Independent Order of A. I., 36 Misc. Rep. 205, which in turn cites Wachtel v. Noah, W. & O. Bm. Socy., 84 N. Y. 28.

It seems to me that the interpretation of the language of this section by the court below fails to give any effect to the words by registered mail.” If the provision were intended to impose the giving by the secretary of actual notice in writing, it is apparent that it would be quite indifferent to the person to be notified whether he received such notice by registered mail, ordinary mail or by hand. What then can be the significance of the qualification notified * * "" by registered mailV’ It can be no other than a privilege to the secretary; so that if the secretary notifies by registered mail, he is protected, and the notice constructively deemed sufficient, while the party to be notified has been warned in advance by the provision of the section that he must take due precaution, in the event of his removal, if he desires to receive his notice, either to have his mail forwarded or to appoint some one in his place to receive and attend to his mail. This interpretation, moreover, is confirmed by section 15, to which the learned court below attached no weight. I am aware that this reasoning may be regarded as in conflict with that adopted by this court in the Weinberg case, sitpro, although it is possible to point out a difference between the phrase in the case at bar shall be notified by registered mail ” and the language construed in the Weinberg case “ after being notified thereof by a registered letter.” Moreover, in the Weinberg case there was no provision like section 15 hereinabove referred to. It is to be noted, however, that the Wachtel case, upon which, in large part, the decision in the Weinberg case was based, involved a provision reading: The secretary shall give to each member who is in arrears a written notice calling his attention to the fact.” The absence of the qualifying phrase “ by registered mail ” as well as of the saving provisions of section 15 is significant as pointing the distinction upon which I base my decision.

Other points raised by the respondent need not necessarily be decided. Nevertheless, it may be well to point out that these do not seem to be well grounded.

He contends:

1. That the dues for which the expulsion was inflicted were not lawful and that at least a part thereof was imposed for tickets for a benefit performance. While it is true that section 17 of article XIV of the constitution of the order permits the raising “ for lodge purposes only of additional contributions,” and that tickets for a benefit performance do not seem to be for a lodge purpose, nevertheless, the balance of the assessment was the “ regular quarterly dues ” imposed by section 3, article IV, of the by-laws of plaintiff’s lodge, and, in order to save his rights, plaintiff should at least have tendered the amoupit lawfully due, as was done in Wright v. Knights of Maccabees, 196 N. Y. 391, 397.

2. That the notice addressed to the wife referred to no amount as due; hut the entire sum was mentioned in the notice to the plaintiff. This, however, was in accordance with section 3, article IV, of the by-laws, reading: “ The regular quarterly dues for male members shall be $4.25; female members do not pay any lodge dues.”

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

Lehman, J., concurs in result.

Seabury, J., dissents.

Judgment reversed.  