Todd v. Keator

Kellogg, P. J. (concurring in result):

It is a fair inference from the complaint that Camp No. 2 was authorized by the supreme organizer, or by his authority, or by the parent camp, and that the defendant was designated by such authority to act as secretary of the local camp, assumably until local officers were duly elected. The policyholders, at or near Griffin Corners, from their certificates, apparently *120became members of the local camp, and it was their duty, under section 4 of article 3 of the constitution, to “elect officers for their own government and hold meetings for the transaction of business in accordance with the by-laws. ” It was apparently as much the fault of the members as it was of the local secretary that no officers were elected and no meetings held.

The moneys paid the local secretary were properly paid to him, and one-half of them are the funds of the local camp to be turned over to the treasurer when elected for the use of the camp. The plaintiff paid his part of the moneys strictly according to the by-laws, and has no further interest in them except to see that they are used for purposes of the local camp. The local camp not having been organized, perhaps any member, in behalf of all of the members, might maintain an action if the moneys had been actually misapplied by the defendant, there being no official in existence who could maintain said' action. There is no allegation of facts indicating that the defendant has misapplied the moneys, or has actually converted them to his own use. The allegation of the complaint that the defendant has not paid the money over to the treasurer, there being none, and that no camp was maintained, and that the money was not paid over by defendant for the benefit of the local camp, but was retained and converted to his own use and not paid over to the local camp, is not an allegation of the conversion of the funds. From all that appears the funds are still retained by the defendant as local secretary, according to his duty, ready to be turned over to the treasurer when the members of the local "camp shall elect one. The failure by the defendant to turn over the moneys to the plaintiff and others on demand was not a conversion; the defendant could not lawfully pay over the moneys to them. There is no statement of fact showing a conversion. The conclusions alleged do not follow the facts alleged, and there is nothing in the complaint to show any illegal act upon the part of the defendant.

Order and interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with usual leave to the plaintiff to plead over on payment of costs in this court and at Special Term.