
    (75 Hun, 419.)
    BAER v. HUDSON ST. PERMANENT SAVINGS & LOAN ASS’N.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    Estoppel—In Pais.
    Where a loan association denied that a member made a withdrawal application on a certain day, and at the suggestion of the association the member makes another application, he is not estopped afterwards to claim the right of withdrawal under the first application.
    Appeal from Monroe county court.
    Action by Seligman Baer against Hudson Street Permanent Savings & Loan Association. From a judgment in favor of plaintiff and from an order denying a motion for a new trial made on the minutes of the court, defendant apeals. Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
    E. C. Werner, for appellant.
    H. J. Stull, for respondent.
   LEWIS, J.

The defendant is a domestic corporation duly organized and incorporated under the laws of the state of Hew York. Its members pay in at stated periods dues. It is provided in its articles of association that any of its members not having received a loan -may at any time on written application to the board of directors draw from dues paid by him all or any part thereof, the same to be paid after all prior applications for loans and withdrawals have been satisfied. The plaintiff w-ais on the 1st day of April, 1892, a member and shareholder of the defendant, and as such held shares of stock upon which there had accumulated at that time in dues and dividends the sum of $152. There was at the time of the commencement of the action that sum to his credit on the books of the defendant in dues paid in by him, exclusive of the dividends paid thereon.. He had, prior to the 1st of April, 1892, received two loans from the defendant, but they had been paid up and canceled, and he had not received any other loan, so that he was entitled to withdraw from the association the amount of money claimed in his complaint if he did, as claimed by him, give the proper notice to defendant on the 1st day of April, 1892. That was the principal and main question litigated upon the trial. The plaintiff testified positively to making such an application on that day at the office of the defendant. He testified that his application was entered upon the books of the association, pursuant to- its rules and regulations, by a Mr. Hertel, one of the trustees, and that Hertel made the proper entry upon the books, and signed the plaintiff’s name thereto, at his (plaintiff’s) request. Other witnesses were called by the plaintiff, who gave evidence tending to corroborate his contention. Mr. Her-tel was called as a witness of the defendant, and flatly contradicted the plaintiff’s testimony. Other witnesses gave testimony tending to controvert the plaintiff’s contention. The books of the defendant were produced at the trial, and upon an inspection thereof the plaintiff’s application did not appear to be entered, but it did appear that an entry was made upon the books on the day that the plaintiff testified his application was entered, Which entry appeared to have been erased. Whether it was the plaintiff’s application that was erased was a subject of conflicting evidence. The jury found upon conflicting testimony in the plaintiff’s favor, and we cannot say that their verdict was not justified by the evidence.

Whether the plaintiff made the application in April, being a matter of dispute between the parties, at the suggestion of the defendant he made another application in October, 1892. If the last application was made under the circumstances as related by the plaintiff, it did not, we think, estop him from claiming under the previous application made in April. As the plaintiff did not base his claim to recover upon the October application, but under that of April, and it being conceded upon the trial that if the application was in fact made in April the sum claimed was due before the commencement of the action, it was immaterial whether the amount claimed was due if the claim was in fact made in October, and not in April, as contended by the defendant.

We have examined the defendant’s exceptions and find nothing in them calling for a new trial. The judgment and order appealed from should be affirmed. All concur.  