
    Emily Biskupski Resp't, v. Emil Pospisil, as President of the Jan Ziska Lozecislo 413, Independent Order of Odd Fellows, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed March 9, 1894.)
    
    1. Appeal—Direction op Verdict.
    Where, at the final close of the case, the court, without motion by either party, takes the case from the jury and directs a verdict for the plaintiff, the evidence must be full, clear and sufficient to support such direction against the objections and exception of the defendant.
    2. Odd Fellows—Death Benefits.
    A widow cannot recover death benefits for her deceased husband, where he ceased to be a member of the order by his voluntary acts or expulsion.
    
      Langbein Brothers & Langbein, for app’lt; August P. Wagener, for resp’t.
   McCarthy, J.

This is an appeal from a judgment entered on the verdict of a jury by direction of the court in favor of the plaintiff, and from an order denying a motion for a new trial. The complaint was to recover the sum of $175 death benefit provided to be paid by the defendant, which was a lodge for such purposes on the death of plaintiff’s husband, who was a member of the lodge. The answer and defense was that some months previous to his death, the plaintiff’s husband was expelled. The defendant is a subordinate lodge of the Grand Lodge I. O. O. F. The constitution and by-laws of the Grand Lodge and its subordinates are in evidence. By Article IV., section 2, the grand lodge has one general form of constitution for the government of all subordinate lodges,which shall be considered as the laws by which each subordinate lodge is to be governed in the transaction of its business, and it has a right to make by-laws. Section 7 provides: “The benefits provided shall be depended upon, and recoverable only through the methods provided in the constitution, by-laws and rules of the order, to wit, trial in the lodge’s appeal to the lodge, to the district grand committee, to the grand lodge, and unless permission be refused by that body to the supreme lodge.” By Article VIII., trials, section 1, no member shall be put upon trial unless charges shall be submitted to the lodge in writing signed by a member of the order. By § 4 of this article, it is provided, “If the accused refuse or neglect to stand trial when duly summoned, the committee shall report, which report shall be conclusive and the punishment guilty of contempt of the lodge, shall be expulsion.” He may be represented by counsel, and tried as though present, if he so elects. By § 7 of this article it is provided, “Any member intending to appeal from the action of the lodge shall file with the secretary a notice of appeal, who shall forthwith send the notice, together with a certified copy of the charges, reports evidence and proceedings of the lodge relating to the case to the grand committee of the district.” By article 4 § 8, it is provided, “When a brother ceases to be a member of the lodge by reason of expulsion, his right, title, and interest in and to the property and funds of this Lodge or any part thereof, thereby becomes extinguished.” The by-laws of the defendant were put in evidence and portions of the same were translated in evidence. These provide as follows: “Every member is entitled incase of his sickness, by which he may be disabled from following his usual occupation to a sick benefit.” Members of whom it can be proven that they have received sick-benefit, claiming to be sick, and the fact being contrary, or otherwise using the funds of the lodge may be expelled. The plaintiff’s husband received benefit moneys, claiming to be sick. Charges were submitted to the lodge, signed by a member, he was notified, and put upon trial, he refused and neglected to attend, and for this contempt of the lodge he was expelled. The plaintiff’s husband then took an appeal from this action of the lodge to the district grand committee, which reversed the action of the lodge expelling him, and the lodge thereupon appealed from the decision of reversal to the grand lodge, which reversed the decision of the district grand committee, and sustained the action of the lodge, expelling plaintiff’s husband. The journal of the grand lodge and the report of the committee on appeals to the grand lodge and other records and evidence showing all these facts were admitted in evidence.

The plaintiff can only recover provided the husband at the time of his.death was a member of the defendant’s order in good standing and in accordance with its constitution and by-laws. If he was not such a member by his voluntary acts or expulsion, she cannot recover. It was obligatory on the plaintiff to prove that at the time of her husband’s death, he was such a member and there is no presumption to obviate this requirement, nor do I find in the case any affirmative evidence showing such fact.

It may be said however that at the close of plaintiff’s case, no motion to dismiss being made, that therefore, the presumption is, the plaintiff has made out a prima facia case. This is so generally, but where at the final close of the case, the court without motion by-either party, takes the case from the jury and directs a verdict for the plaintiff, the evidence must be full, clear and sufficient to support such direction, against the objections and exception of the defendant. While we do not agreee with the appellant’s counsel in many of his contentions on the the law and to the rules of evidence and the admission of documents, we think there was sufficient evidence of the fact, that charges were made against Anton Bisltupski and that notice to attend before the proper trial committee was given to him and of his failure to attend and consequent expulsion. His appeal to the district grand committee and their reversal of the decision of the lodge. Also of the appeal of the lodge to the grand lodge of the state of New York, its reversal of the decision just stated and the restoration of and affirmance of the original decision of the lodge of which Anton Biskupski was a member. (See pp. 12, 13, 15, 17, 21, 23, 26, 28, of case) which requires a submission of the case to the jury. He was subject to the constitution and by laws of this order and by the same as well as by his appeal, recognized and submitted himself to its judicial powers. The report agreed to and resolution adopted as appears at pp. 16, 17 of case, was an adjudication by the grand lodge and binding on -Anton Biskupski and therefore on the plaintiff, his wife, until disturbed by the still higher appellate tribunal as provided by the constitution and laws or set aside by the court for fraud or mistake. Therefore the learned justice erred in directing a verdict for the plaintiff. There was sufficient dispute which required it to be submitted to a jury. For this reason, the judgment should be reversed, and a new trial with costs to appellant to abide the event.

Yak Wyck, and Newburger, J.J.concur.  