#### Louis Roeding, Respondent, *against*Sons of Moses, Appellant.

(Decided December 1st, 1890.)

The secretary of a benevolent society, although not authorized by its constitution or by-laws to accept payment of dues from members, habitually received such dues, which he paid over to the society. *Held,*that the society was thereby estopped to deny his authority to accept dues tendered by a member, but refused by him on the ground of want of authority; and that such tender was legally equivalent to payment, so as to render the society liable for the benefit payable on the death of such member, as a member “ clear in the books ” under its by-laws ; he having died before any subsequent meeting of the society or its directors at which the dues might properly have been paid.

Appeal from a judgment of the District Court in the City of New York for the Sixth judicial District.

The facts are stated in the opinion.

*W. It. Spooner,*for appellant.

*L. S. Phillips,*for respondent.

Pbyob, J.

Appeal from judgment of a district court in favor of plaintiff.

Action by an assignee, to recover of defendant, a benevolent society, -|250, to which the assignor claimed to be entitled as widow of a deceased member of the society. The claim was valid, if the deceased member had complied with provisions of the society’s by-laws, now to be considered.

Art. IV. sec. 1, “ Each member shall pay $4 dues at the end of each quarter, in the months of March, June, September, and December, or in the following meeting of the directors.” Sec. 4. “ A member who fails to pay his dues at the legally specified time forfeits all claims on the society, with the exception of the burial ground. He is entitled to all rights as soon as he is clear in the books.”

*418Art. XIII, sec. 1. “ The regular general meetings shall take place on a Sunday in the middle of the months of December, March, June, and September. There shall also he held a board meeting monthly.”

It is conceded, in respect pf the two quarters ending in June and in September, 1888, that when he died no part of the $8 then due had been actually paid to the society ; and the question is : had he done that which was the legal equivalent of payment, or was he “ clear in the books?” He had dono this: the two quarters having elapsed without payment by the deceased, notices to pay those dues were sent to him by the secretary of the society. October 14th, a son of the deceased, on his behalf, sent a check for $8, the amount of the dues for two quarters, to the secretary of the society. Next day the secretary Returned the check, with a letter stating that he had no authority to accept dues from members, which must be paid at meetings of the society or at meetings of the directors, and that the next meeting would be held in the ensuing November. The secretary admitted that he was in the habit of receiving dues from members, but this he did as .a favor and not under the authority of the by-laws. It appeared that this son of the deceased, made other tenders in cash to the secretary, which, however, he declined to receive on the same ground. The deceased died October 25th, 1890. At his death was he “ clear in the books ? ” The secretary had no authority, under the constitution or by-laws, to receive dues from members. As member of the society the deceased was chargeable with notice of the by-laws; when he attempted, by his agent, to' pay his dues, he did so by tender to a person without actual authority to accept it; and so, it is said, he died in default to the society. But it is answered that the society is estopped to deny the authority of the secretary, by his habitual practice in receiving dues from members. That such was his practice is incontrovertible upon the evidence. A practice so habitual and so long continued, aided by the fact that the dues received by the secretary were paid by him to the society, raises a presumption, if not that the by-law requiring

*419the treasurer to receive all moneys had been tacitly abrogated, at least that such practice of the secretary was known and ratified by the society. This presumption is not rebutted by a particle of proof; and so the defendant was estopped by the apparent authority which it communicated to its agents. The distinction which the secretary draws between his official and his individual character, saying that he received dues in the latter and not in the former capacity, is one which, existing only in his own consciousness, could not be perceived by those who put the money in his hands. To suffer its secretary habitually to receive and pay to it dues from members, without objection that he had no authority so to do, and then, when by the death of a member the error is irreparable, to deprive the widow of her pittance on the pretext that the tender was to the wrong person, is an injustice which the courts will be astute to avert. The argument of defendant’s counsel, that the secretary apprised the deceased of his lack of authority to receive dues, is without force ; since he did so on the 15th of October, the day after the tender.

Appellant urges that the tender of payment was not made at “ the legally specified, time,” as prescribed by the by-laws; but the answer is obvious, that this time is too uncertain and indeterminate to justify a forfeiture for failure to ascertain it.

For near forty years, the deceased had been contributing to the treasury of the society, and it would be the extreme of injustice to deny his widow the small provision, because $8 were not tendered on the very day of payment.

The deceased was “ clear in the books; ” but, if not, it was the fault of defendant.

J. F. Daly, Ch. J., and Bischoff, J., concurred.

Judgment affirmed, with costs.