Anthony v. Carl

MacLean, J.

It is provided in the by-laws of the unincorporated association, of which the defendant is treasurer, that “ twelve months’ initiation into the lodge and payment of all dues arising from monthly or funeral fund contributions, fines, etc., that may legally be demanded of him by the lodge, shall entitle a member in the event of death to eighty dollars,” which, upon conditions assumable here, are payable to the widow. The plaintiff is the relict of one J ames Anthony, who was for some years a member of the lodge, and who died December 22, 1898. In his “ financial book,” or official showing of the deceased member’s payment of dues, there appears no payment of monthly dues after July, 1898, and no payments into the funeral fund during the year. It appears uncontradictedly that six persons died during the year, and that the deceased member was in arrears to the funeral fund for contributions by reason of three of them in May, or seven months before his death; that he was then, upon the payment of certain arrears for the preceding year, officially reminded of the fact and that he promised to pay the same, but did not. Thus in arrears for his dues and in default as to his contributions, the deceased had forfeited his rights in the fund and neither his widow nor other beneficiary could make valid claim for the “ funeral money.” Stress is laid by counsel for the respondent upon the words quoted above, “ may legally be demanded of him by the lodge,” and it is contended for the plaintiff that it was necessary for the defendant to prove that actual demand had been made for the monthly dues and for the funeral contributions. He seems also to regard the lodge as a pecuniary benefit and mutual assurance society. The learned trial justice may have taken the same view, as he found for the plaintiff. This is a mistaken view of the Philomathean, which as appears by declaration, introduced by the plaintiff, of its principles and purposes, was formed for higher aims, for the promotion of fraternal association, and for relief and benefits in which money plays no part. To foster such association the members are required. to attend the regular bimonthly meetings, at which they are assigned in turn to attendance upon the sick, to visits of consolation, and participation in the last offices for the dead. Incidentally, provision is made for assistance and relief in money, which comes from dues, stated contributions and fines. The contributions are payable forthwith on being taxed, the dues are to be paid by members in person each month, and at the meetings. They may not be transmitted to the lodge excepting under certain excuses, of the instance of which herein no suggestion was made. So strict is the by-law that it forbids the treasurer to receive or credit any dues or .taxes sent him saving upon exceptions just referred to, it being the. avowed intention, expressed in the preamble of the by-laws, to constrain all members to attend the regular gatherings for the promotion of the purposes for which the Philomathean was founded. As the plaintiff failed to prove conditions precedent to her recovery, it was error to find in her favor.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Leventritt, J., concur.

. Judgment reversed and new trial ordered, with costs to appellant to abide event.