
    Bertha Makman, Respondent, v. Independent Order Free Sons of Judah, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Associations — provisions of constitution of fraternal order — action to recover on certificate of membership — intentional lapse of membership.
    Insurance (life)—policy of — when rule of anticipatory breach not applicable.
    A life insurance policy is not a contract of the character to which the rule of anticipatory breach applies.
    A provision of the constitution of a fraternal order that where a member has not paid his monthly dues after notice, on the second meeting of the month “ he shall be stricken off the roll of membership for nonpayment of dues,” is self-executing and operates to suspend a member in arrears without further action on the part of the lodge.
    Where, in an action to recover on a certificate of membership in a fraternal society by which it agreed to pay to the holder’s widow a certain sum out of its endowment fund, it appears that from July 1, 1908, when he intentionally allowed his membership to lapse and -renounced the contract by declaring that he would not pay his dues because the lodge was going to ruin anyhow, until his death in 1911 he paid no dues,-plaintiff is not entitled to recover.
    Appeal from a judgment of the City Court of the city of New York, entered in favor of the plaintiff after a trial by the court without a jury.
    Leopold Freiman, for appellant.
    Jonas J. Hegt, for respondent.
   Page, J.

This is an action brought by the plaintiff as widow of one Max Makman, deceased, to recover the sum of $500 alleged to he due to her under an endowment certificate issued by the defendant. It is not disputed that on July 15, 1896, Max Makman was duly initiated and admitted to membership in the Forest City Lodge of Cleveland, O., a duly constituted subordinate lodge of the defendant order, and that at the time of his said admission into the order he was given a certificate of the order under seal certifying that he was such member and agreeing to pay to his widow upon his death the sum of $500 out of its endowment fund. It is also admitted that in the month of May, 1908, the defendant order sent to its aforesaid Forest City Lodge certain letters stating that the said lodge and its members would stand suspended from the order on July 1, 1908, unless prior to that time it should be recruited with younger men, and that from and after that day the defendant would refuse to recognize said Forest City Lodge and its members, and that it would refuse to pay any endowment benefits after that day, but that it would pay all death claims accruing up to July 1,1908.

The members of Forest City Lodge were required to pay monthly dues in advance at the rate of one dollar and thirty-five cents per month. The constitution of the defendant order contained the following provision : " Any member failing to pay his monthly dues on the first meeting of the month, notice shall be mailed to his last known address to pay up his dues at the next meeting viz: on the second meeting of the month. Should a brother neglect to pay on that date, he shall stand stricken off the roll of membership for non-payment of dues.” It is conceded that Max Makman did not pay any dues from February 23, 1908, to July 1, 1908, and that before the second meeting in June, 1908, the secretary of Forest City Lodge sent a notice to Max Makman to pay his dues and arrearages to July 1, 1908, at the second or general meeting in June and that Makman did not pay his dues at that time and has not since paid them, and in response to requests of his secretary said, “ That the Lodge will go to ruin anyhow so that he would not pay up.”

The plaintiff seems to have been allowed to recover in the court below upon the theory that there being no authority for the suspension of the Forest City Lodge by. the defendant order for the reasons stated in its letters of May, 1908, and its refusal to recognize the Forest City Lodge and its members, being a breach of the contract, the plaintiff’s decedent, Max Makman, was absolved of his duty to continue the tender of payment of dues after receipt by his lodge of the aforesaid. letters of suspension. There is no force in this contention. . An insurance policy is not a contract of the character to which the rule of anticipatory breach applies. Kelly v. Security Mut. Life Ins. Co., 186 N. Y. 16. TJpon being informed of the letter stating the intention of the defendant on and after July 1, 1908, not to recognize the subordinate lodge unless certain conditions were complied with, which the defendant had not power to enact, three courses were open to him, either to abandon entirely his contractual relations with the defendant and consider the contract as rescinded, or to keep the contract alive by tendering performance, or to bring’ a suit in equity to compel the defendant to receive his assessments and restrain it from carrying into effect the purpose declared by its letter. Langan v. American Legion of Honor, 174 N. Y. 266, 270. The notice of May, 1908, issued by the defendant did not take effect until July 1,1908, and there was no reason why the plaintiff’s decedent should not "have kept his membership in good standing by paying his dues up to that date if he desired to continue the contract or resort to equity to enforce his rights. This he did not do, but he intentionally allowed his membership to lapse and renounced the contract by declaring that he would not pay because the lodge was going to ruin anyhow. Though his name was never actually stricken from the defendant’s roll of membership, the constitution states that where a member has not paid his dues after notice on the second meeting of the month ‘ he shall stand stricken off the roll of membership for non-payment of dues.” The language of this provision would appear to be self-executory and to suspend the member without further action on the part of the lodge. Phillips v. U. S. Grand Lodge, 39 Misc. Rep. 296.

The decedent was not a member of the lodge in good standing on July 1, 1908, and was not such member at the time of his death in 1911, and his widow is, therefore, not entitled to recover in this action.

The judgment appealed from should be reversed, with costs, and the complaint dismissed, with costs.

Seabury and Bijur., JJ., concur.

Judgment reversed, with costs, and complaint dis- • missed, with costs.  