
    Long Island Bottlers’ Union, Appellant, v. S. Liebmann’s Sons Brewing Company, Respondent.
    
      Resignation from a bottlers’ union, the by-laws of which require a thirty days’ notice — notice of intention is equivalent to a resignation — talcing advantage of a by-law fixing the time of payment for 'services is not a waiver of the resignation — the resigning member is not liable under a contract made by the union with a third person.
    
    The Long Island Bottlers’ Union is a domestic corporation engaged in the business of collecting and returning lost or abandoned bottles or boxes owned by the members thereof, a stipulated charge being made for the services.
    Section 8 of article 8 of the by-laws of the association provides as follows: “Any member may resign his membership in this Union by filing with the Secretary, one month before such resignation shall take effect, a written notice of his intention to resign, which notice shall, at the expiration of said period of one month after the receipt of same by the Secretary of the Union, operate in itself as a waiver of all his rights and privileges as a member of the Union, provided he has paid all dues, fines, assessments and other liabilities up to the time of handing in his resignation.”
    May 10, 1900, a brewing company, which was a member of the bottlers’ union, delivered to the secretary thereof a notice of its resignation, which was dated May 1, 1900, and was conditioned “ to take effect immediately.”
    On June 10, 1900, the brewing company had paid ail sums due to the bottlers’ union up to the time it tendered its resignation. The brewing company also paid for all services rendered to it by the bottlers’ union between May 10,1900, and June 10, 1900. In paying for the latter services the brewing company took advantage of a by-law of the bottlers’ union, which gave members thirty days’ time in which to settle their bills.
    In an action brought by the bottlers’ union against the brewing company to recover for bottles and boxes collected between June 10, 1900, and October 26, 1900, it was
    
      Reid, that the bottlers’ union was not entitled to recover;
    
      That, under the by-law quoted, the notice of intention to resign was equivalent to a resignation, which, upon the timely payment of all the moneys due to the bottlers’ union, should, of itself, take effect as a resignation and thereafter , operate, not only as a waiver of the rights and privileges of the member, but also as a release from the general obligations attaching to membership;
    That the fact that the brewing company, in making payments for the services rendered during the period intervening the tendering of the resignation and the taking effect thereof, acted pursuant to the by-laws of the bottlers’ union, did not constitute a waiver of the resignation as a matter of law;
    That a contract made between the bottlers’ union and a third party which did ■ not terminate until June 1, 1901, by which the third party agreed to collect, at the expense of the bottlers’ union, all-bottles bearing registered trade marks whether belonging to the members of the union or not, did not impose any liability upon the brewing company in its capacity as a member of the association which survived its resignation;
    Appeal by the plaintiff, the Long Island Bottlers’ Union, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of March, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of March, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Charles M. Stafford, for the appellant.
    
      Walter H. Liebmann, for the respondent.
   Hirschberg, J.:

The case was disposed of at the Trial Term on the assent of the parties that it presented only a question of law. The plaintiff is a domestic corporation, engaged in the business of collecting lost or abandoned bottles and boxes and assorting and returning them to> their owners who are members of the association, and who are apparently required by some rule or regulation not disclosed to pay-certain stipulated charges for the service. The defendant is a stockholder in the corporation, and -was a member until the taking effect of a resignation which was delivered to the plaintiff’s secretary on May 10, 1900. The defendant paid the plaintiff for all bottles collected and delivered prior to the commenceynent of the action, excepting for 30,000 bottles and 100 boxes which the plaintiff collected sometime between June 10, 1900, and October 26 of that year. The defendant refused to receive and pay for this collection, and the action is brought to recover for the service at the rate of one cent for each bottle and five cents for each box. The determination of the controversy between the parties depends chiefly upon the construction to be given to the terms of the by-laws in relation to the resignation of members.

Section 8 of article 8 provides as follows: “ Any member may resign his membership in this Union by filing with the Secretary, one month before such resignation shall take effect, a written notice of his intention to resign, which notice shall, at the expiration of said period of one month after the receipt of same by the Secretary of the Union, operate in itself as a waiver of all his rights and privileges as a member of the Union, provided he has paid all dues, fines, assessments and other liabilities up to the time of handing in his resignation.”

The resignation which the defendant delivered to the plaintiff’s secretary on May 10, 1900, was in the form of a notice of withdrawal and resignation as a member of the association, was dated May 1, 1900, and was conditioned “ to take effect immediately.” It is only claimed on behalf of the defendant, however, that it became effective on June 10, 1900, and I think the claim is well founded, the defendant having then substantially paid all dues, fines, assessments and other liabilities up to the time the resignation was handed in. By section 1 of article 9 of the by-laws it is provided as follows : “ All bills due to the Union for bottles, boxes, etc., delivered, shall become due and payable between the 1st and 10th day of every month following such deliveries. Any member failing to settle his accounts within 30 days from the date they become due and payable, shall become in arrears and shall not receive any goods from the exchange except for cash, until the entire amount in arrears is paid in full.” There is evidence sufficient to justify a finding that all the April deliveries, in fact all that was due on May 1, 1900, was paid on the sixteenth of that month, and although the plaintiff continued to collect and the defendant to receive bottles until June 9, 1900, the day befox’e the resignation took effect, and although they were paid for on the theory that the defendant could not be considered in arrears until thirty days after the liability therefor matured, neither party apparently regarded the circumstance as a waiver of the resignation, nor can it be said in law that a continuance of the dealings under the terms of the by-laws as to the time of payment during the^period intervening between the handing in of the resignation and its taking effect necessarily constitutes such a waiver.

The plaintiff contends that the by-laws contemplate the service of an additional paper at the end of the thirty days as an actual resignation supplementing the written notice of an intention to resign, and also contends that while the notice filed operates in itself as a waiver of all the member’s rights and privileges, it cannot operate to terminate future liabilities. ■ Feither contention seems sound. While the language employed is not as plain as might be, it is obvious that the scheme of the by-law in question is to regard the notice of intention to resign as equivalent to a resignation, which, upon timely payment of all the specified dues, liabilities, fines and assessments, shall in itself take effect as such, and which shall thereafter operate not only as a waiver of the rights and privileges, but also as a release from the general obligations attaching to membership.

One further claim of the plaintiff demands consideration. An agreement was made on April 12, 1893, between the plaintiff and the firm of Labretta Brothers, by which the former employed the latter for one year to collect from public dumps and scows at the plaintiff’s expense all bottles bearing the name or mark of any member of the union. This agreement was renewed from time to time, and on June 1, 1899, was extended until June 1, 1901, and thereafter, but before the defendant’s resignation, was modified so as to include all bottles containing registered trade marks, whether belonging to members of the association or otherwise. The plaintiff contends that the terms of this contract create a liability on the part of the defendant for all bottles collected until June 1,1901, which is embraced within the provisions of section 8 of article 8 of the by-laws, and cannot be avoided by resignation. I cannot agree with this contention, which would involve a very forced construction of the section. The defendant is still a stockholder, but the liability sought to be enforced in this action is that of a member engaged in the bottling business. It is not created by the by-laws, and if it exist at all it must be by force of some rule or regulation lawfully adopted. The obligation to pay the prices for which the plaintiff sues is alleged in the complaint but denied in the answer, and no proof of it'was made upon the trial. It cannot, therefore, be held upon the proof that the defendant is compellable to pay, either as a stockholder or as a member, the prices sued for, by reason of the mere fact that the plaintiff has incurred some expense under its agreement with Labretta Brothers. That the defendant agreed to pay the prices sued for while a member may, perhaps, be assumed from the course of dealing, but that assumption cannot be extended to a liability which has never been admitted. Whether any pecuniary obligation exists on the defendant’s part as a stockholder need not be determined. Assuming that its membership was terminated on J une 10, 1900, the plaintiff was still obliged to collect its bottles under the Labretta contract until June 1, 1901, in common with all other bottles of non-members found upon the dumps or scows, and cannot recover any arbitrary sum therefor either, under the provisions of section 8 of article 8 of the by-laws, or under any other rule or regulation which has been disclosed.

It follows that the judgment and order should be affirmed.

Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred.

Judgment and order affirmed, with costs.  