
    Domenico Geraci, Appellant, v. The Italian Association St. Bartholomew Eoliana of Mutual Aid of New York, Respondent.
    (Supreme Court, Appellate Term,
    December, 1907.)
    Estoppel — Equitable estoppel' and estoppel in pais — Facts creating estoppels — Renunciation of right.
    Fraternal and Mutual Benefit Associations — Extent of loss and liability of association — Sick benefit.
    Where the by-laws of a Mutual Benefit Association provide that, upon the sickness of a member, a diary shall be furnished in which the physician shall enter the member’s name, nature of the illness, date of each visit, etc., until there is a complete cure and that notice of the commencement and termination of the illness shall be given, and the association pays sick benefits upon the duration of the illness shown by the diary, and where a member suffering from illness, wishing to obtain the sick benefits then accrued, asks the association’s physician then attending him to' declare him cured,, but the physician enters in the diary a statement that he has not recovered but that he asked to have the diary closed and signs the statement and returns it to the member, the member is not thereby precluded from recovering sick benefits provided for by the association’s by-laws subsequent to such closing of the diary.
    Where the by-laws of the association provide for medical attendance to sick members, such a member is entitled to recover for the reasonable value of the services of a physician procured by him after services of the association’s physician had been refused.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Hew York, fourth district, borough of Manhattan.
    Giuseppe L. Maggio, for appellant.
    James E. Brande, for respondent.
   Per Curiam.

This action was brought by the plaintiff against the defendant to recover the sum of thirty-nine dollars, of which sum it was alleged that twenty-five dollars thereof was for sick benefit and fourteen dollars for money paid out for medical services. The pleadings were oral, the answer being a general denial. The trial began on August 8, 1906, and the hearing was adjourned, and it was not resumed again until January 23, 1907. At the close of the trial the court gave judgment for the defendant. Tinder one section of the defendant’s by-laws it agrees to pay a sick benefit of one dollar per day to-a sick member, and he is also entitled to the medical attendance of the society’s physician. It is undisputed that the plaintiff became ill on the'16th day of September, 1905, and that he was unable to perform labor as a carpenter, which was his trade, until October 15, 1905, a period of twenty-eight days. For the first five days he was attended by a physician called by himself and from September 21, 1905, until October 6, 1905, the defendant’s physician attended him. Another section of the by-laws of the defendant requires the association’s physician to leave with the sick member what is termed a “ diary,” giving the member’s name, nature of the illness, date of each visit, etc., until there is a complete cure; also requiring a notice to be given to the corresponding secretary of the defendant of the commencement of the illness and its termination. It seems that, upon presentation of this diary, the association pays the sick benefits based upon the duration of the member’s illness as shown therein. On October 6, 1905, the plaintiff, wishing to obtain from the defendant the sick benefits then accrued, asked the defendant’s physician, then attending_him, to declare him cured. The physician demurred to doing so, but finally gave the plaintiff his so-called diary,” at the end of which he said: The member, not yet recovered from the disease, requests that the diary be closed and that he be declared cured, at his request, this 6th day of October, 1905, Dr. A. Cavallaro.” It does not appear whether or not the diary was presented to the defendant until after the plaintiff was completely cured . On October seventh, however, the plaintiff again called upon the defendant’s physician and asked him to continue to treat him. This he refused to do, saying that the plaintiff’s illness was but slight. Thereupon the plaintiff notified the defendant that its physician refused to attend him, asked that a physician should he sent to visit him, and warned the defendant that, upon its failure to send a physician, he (plaintiff) would employ one at the expense of the association. Uothing came of this notice, and the plaintiff employed the physician first engaged hy him, who visited the plaintiff seven times, for which he charged fourteen dollars. The one dollar per diem for ■twenty-eight days’ sick benefits, less three dollars required by the by-laws of the defendant to remain with the society on deposit in aid of a certain fund, and the fourteen dollars before stated, making thirty-nine dollars in all, constituted the plaintiff’s claim. The defendant did not seriously dispute the testimony on the part of the plaintiff. It admitted a liability for sixteen days at one dollar per day, less three dollars as above stated, and paid into court the sum of thirteen dollars, but claimed that the plaintiff was bound by the report of the society’s physician in the so-called diary and could not collect for illness after October sixth. We cannot adopt this view. The society’s physician in his certificate of October sixth expressly declares that the plaintiff was not cured; and, on October seventh, he admitted that the plaintiff had a slight illness.” It was shown, without contradiction by the plaintiff’s physician, that the plaintiff was wholly unable to perform labor .from October sixth to October sixteenth, inclusive, so that the claim for twenty-eight days’ illness is established. We are also of the opinion that a fair construction of the by-laws of the defendant would render it liable to one of its sick members, to whom the services of the society’s physician had been refused, for the reasonable value of the services of a physician procured by-the member, after notice to and failure of the society’s physician to attend such a sick member.

Present: Gildersleeve, Guy and Bruce, JJ.

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

All concur.  