
    James Fitzgerald, Resp't, v. The Burden Benevolent Association of the City of Troy, App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    1. Benefit societies—Membership.
    By § 3 of art. 1 of defendant’s constitution it is provided that its membership should be unlimited; by a subsequent section as to membership it was provided that the association should be open to any employee of the Burden Iron Co. between the ages of 18 and 50, who is sound in health, etc. Held, that the first provision was qualified by the latter, and that one not an employee of the Burden Iron Co. was not eligible to membership.
    8. Same—Admission of ineligible member.
    The corporation cannot, by admitting an ineligible member, bind itself so as to be compelled to pay benefits to him.
    Appeal from judgment of the Rensselaer county court, affirming judgment of justice in favor of plaintiff.
    Action to recover four weeks benefits by reason of an injury received by plaintiff.
    
      R. A. Parmenter, for app’lt; John P. Curley, for resp’t.
   Mayham, P. J.

The appellant is a corporation organized according to law, and as such has adopted a constitution and bylaws for its government:

By § 3 of article 1 of its constitution it is provided the membership of this association shall be unlimited.

By § 1 of article 5 of the same constitution it is provided as follows, under the title Membership; “ This association shall be open to any employee of the Burden Iron Company who shall have attained the-age of eighteen, and who is not over fifty years of age, who is sound in health and of good moral character and able to support himself and family.”

It is quite apparent that this latter provision limits and qualifies the provisions of § 3 of article 1 to the class of persons mentioned in article 5, and that within that class of persons membership is by § 3 of article 1 unlimited.

Ho negative words or words of restriction are required in § 1 of article 5 to authorize that construction. The maxim expressio unius est exelusio alienas clearly applies in the construction of that section, and a person not an employee of the Burden Iron Company would not under this constitution be eligible to membership.

But independently of this rule of construction of the two sections above quoted, it is manifest from the whole tenure of the constitution and by-laws of this association that it is confined in its membership to the employees of that company.

We are of opinion, therefore, that the respondent was ineligible as a member of this association; and this brings us to the consideration of the question of the effect of the illegal admission by the association of one not eligible to membership when the subject of benefits arises between such member and the association.

Did this corporation as such bind itself by its illegal act so as to be compelled to pay benefits to one not eligible to membership? Upon this subject we are cited to authorities containing the familiar principle that an individual acting sui juris can waive a statutory or even a constitutional provision in his own favor affecting his own property or alienable rights not involving considerations of public policy. 45 N. Y., 104.

This is doubtless true, but acts by an individual which would be waivers of a reserved right and which would be an estoppel as to him, would, when performed by a corporation which derives its existence from and can only act under and within its charter, be ultra vires and not binding upon the corporators without their individual consent.

If, therefore, this corporation received a member not eligible in violation of its charter, it is difficult to see how it could bind the corporators by that act in the nature of an executory promise to pay benefits to one not entitled to become a member.

I think, therefore, that the judgment of the justice in awarding the respondent benefits, and that of the county court in affirming such judgment, were erroneous, and that both of said judgments should be reversed.

Judgment of the justice and that of the county court reversed, with costs.

Putnam and Herrick, JJ., concur.  