
    Fillippo Mistretta, Respondent, v. The Familiar Association of Mutual Benevolence, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1915.)
    Associations — fraternal benefit — when judgment entered upon agreed statement of facts reversed — when validity of amended by-law may not be questioned.
    Where an agreed statement of facts is so contradictory that • it is impossible to determine the exact situation regarding the payment of dues at the time plaintiff became a mqmber of the defendant, a fraternal benefit association, a judgment entered upon such agreed statement of facts will be reversed and a new trial ordered on which said statement may be corrected.
    Where a member of a fraternal benefit association in lieu of sick benefits receives a refund of part of his dues, he may not question the validity of an amended by-law depriving nonresident members of sick benefits.
    Appeal by the defendant from a judgment of the Municipal Court, of the city of New York, borough of Manhattan, first district, in its favor for the sum of three, dollars.
    Gerard J. Cuoco, for appellant.
    Francis Mezzatesta, for respondent.
   Guy, J.

Plaintiff brought this action to recover the sum of seven dollars claimed by him to be due from the defendant" as a sick benefit for one week’s disability. Defendant set up a counterclaim for ten dollars, awarded it upon the denial of a motion theretofore made by plaintiff for a writ of mandamus. This counterclaim was allowed and defendant recovered a judgment for three dollars. By the recovery of this judgment the plaintiff has established his right to be paid by the defendant the sum of seven dollars per week as sick benefits, under a certain by-law of the defendant, and this judgment also established a right to receive sick benefits for a like amount to all other members of the defendant similarly situated. The defendant, claiming that plaintiff is not entitled to recover, has appealed and asks this court for a reversal of the judgment. The question involved is the validity of the by-law under which plaintiff has now established his right to recover. The case was heard below, and comes up upon appeal upon an agreed statement of facts. In paragraph 5 of such statement it is set forth that plaintiff became a member of the defendant in “ September 1902.” In paragraph 6 it alleges that “ when plaintiff became a member ” the dues" were fifty cents per month and that the society was paying “no sick benefits.” In paragraph 7 it alleges that in “January 1901” (this, it will be observed, is before plaintiff became a member, if the statement in paragraph 5 is true) the defendant employed a physician for the purpose of treating, during illness, the members of the defendant and their families, that the dues were raised to seventy-five cents per month, the additional twenty-five cents per month being paid to the physician, that members residing outside of Greater New York, who cannot avail themselves of the services of the society’s doctor should be paid two dollars per week during illness, and that this plaintiff then asked that he be refunded three dollars per year, twenty-five cents per month and the further sum of three dollars and sixty-six cents each year, in lieu of the two dollars weekly if sick, and that this request was granted. It will be seen from these paragraphs that it is impossible to determine the exact situation regarding the payment of dues at the time the plaintiff became a member, as it is evident that if he joined in 1902 the by-law of January, 1901, as set forth in paragraph 7 was in force, and the dues were seventy-five cents per month, whereas it is alleged in paragraphs 5 and 6 that he joined in 1902, and that the" dues were then hut fifty cents per month. This contradiction might not be very material in determin ing the validity of the disputed by-law, but it creates" confusion and the case ought not be decided unless all the facts are admitted. Another more serious situation is also presented. The plaintiff attacks the validity of a by-law passed in May, 1913, which amended a by-law passed in 1903. The by-law of 1903, before its amendment, provided for the payment of seven dollars per week sick benefits to all of defendant’s members. The amendment of 1913 thereto deprived all members residing outside Greater New York from receiving the seven dollars per week sick benefits. Paragraph 13 of the agreed statement of facts reads as follows:

“ 13th; That plaintiff has at no time during his membership received any services from the doctor of the society and, in case of illness, has been compelled to engage a doctor at his own expense, for which at his request, and whether or not the society has refunded to him the money paid by him for the doctor and Three and 66/100 ($3.66) in addition yearly.”

If, therefore, as that paragraph may be reasonably construed as meaning that during the time from the passage of the by-law as stated in paragraph 7 in 1901, up to the time the agreed statement of facts was submitted to the court below, the plaintiff has beenreceiving from the society “ yearly ” the refund of twenty-five cents per month and in addition the sum of three dollars and sixty-six cents per year, in lieu of weekly payments when sick, he would have no right to complain of the refusal of the defendant to pay the seven dollars per week provided by the by-law of 1903, even if we assume, without herein deciding, that the by-law of 1913 was invalid, and plaintiff would be estopped from recovering in this action. It is substantially admitted by the attorneys for the respective parties herein that such refunding did not continue after the passage in 1913 of the amendment to the by-law of 1903; but we cannot consider statements extrinsic of the record, and, as the decision in this case is likely to affect many others, the statement of facts should be clear and unambiguous. This can be corrected on a new trial.

Butte and Gavegan, JJ., concur.

Judgment reversed and new trial ordered, without costs of this appeal to either party.  