#### Augusta Hanf, Appellant, *v.*Phillip Herrlich, as Treasurer of Armenius Lodge, Respondent.

(Supreme Court, Appellate Term,

October, 1898.)

Benefit associations — Death benefit reduced by unpaid dues, although • member was not personally notified of arrears.

A provision in the constitution and by-laws of a lodge, reducing death benefits in a certain proportion to existing unpaid dues, is not affected by a direction of the by-laws that the financial secretary shall, four times a year, notify all members “ with a written notice specifying the amount of arrears; ” and if the member be in arrears at the time of his death, the death benefit must be reduced to the extent provided by the constitution, although the financial secretary merely mailed the member a notice of'arrears and never served it upon him personally.

Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of Hew York, borough of The Bronx, second district.

August P. Wagener, for appellant.

F. P. Trautmann, for respondent.

Beekman, P. J.

The plaintiff’s husband, at the time of his decease,. was a member of the Armenius Lodge, the constitution and by-laws of which require each member to pay into the treasury certain dues at stated periods. Another provision is to the effect that the heirs and legal representatives of a deceased member shall: receive upon his death certain benefits, to-wit: “ Subd. 1. ■'When a member, at his death, was, according to the by-laws of the lodge, *699entitled to all the benefits and privileges by reason of his having fully complied with all the requirements of the by-laws, and who had theretofore been a member for a period of six months, there shall be paid $150. Subd. 2. When a member has been in membership for six months shall owe the lodge three months’ dues, $100. Subd. 3. When a member shall owe six months’ dues, the sum of *$75-*Subd. 4. When any such member shall owe nine months’ dues, $50.”

The plaintiff, who is the widow of the deceased, now sues to recover the sum of $150, under subdivision 1, above quoted, less the sum of $75, which was paid to her by the defendant shortly after the death of the deceased. Ho question is made with respect to' the right of the plaintiff to receive whatever benefits accrued to the heirs and legal representatives of the deceased by reason of his membership. It is conceded that at the time of the death of the deceased his dues for six months wTere unpaid. It is claimed, however, by counsel for the plaintiff that the defendant cannot take advantage of this fact' owing to the failure of the lodge to notify the plaintiff’s husband that he was so in arrears, and in support of this contention reference is made to a provision of the by-laws which reads as follows: “The financial secretary shall keep a correct account between the lodge and its members, and pay over all moneys to the treasurer received by him. He shall notify all members after the second meeting in the months of March, June, September and December, who shall then owe moneys with a written notice specifying the amount of arrears and adding five cents for the notice, which goes to the lodge.”

It appears that such a notice was mailed to the plaintiff’s husband; and as the evidence shows that a few days before his death some money was paid into the lodge by hjs wife on his account, it is contended by defendant’s counsel that it may be inferred from this that such notice was received. On the other hand, it is claimed on the part of the plaintiff that nothing but a personal service of the notice upon a member so in default will satisfy the requirements of the by-law in the absence of any special provision therein permitting another kind of service.

However this may be, I do not think the question is important in view of the fact that the plaintiff’s husband was none the less in arrears for his dues though no notice may have been given to him under said by-laws. The direction to the financial secretary to give such notices was intended for the benefit of the lodge, and in order *700to secure a speedy collection of dues from members who might be in . arrears. The giving of such a notice did not condition the right of the lodge-to-receive or the obligation of the members 'to pay their dues, so that, even if this requirement had. been disregarded, they would be- none the less in arrears and liable to pay whatever dues might: -have accrued. That being the case, it is manifest that 'the plaintiff was -entitled to receive only the sum of $75, which was paid to her under subdivision' 3 of the above-quoted bylaw. Tile plaintiff’s husband did owe the lodge six. months dues at'the-time of his death, and the plaintiff cannot, therefore, claim more than the sum which, in that event, was alone payable to her.

■The counsel for the plaintiff .cites the case of Wachtel v. Noah Widows’ *&*Orphans’ Benevolent Society, 84 N. Y. 28¡, in support of his claim. -That case,, however, is radically different in its facts. from the- one before us. There the defense was that the member ■ had been, expelled for nonpayment of his dues. It appeared that - there -was -a by-law p-f the-sóciéty providing -that, “ The financial secretary shall give to each member who is six. months in arrears a written notice, calling his attention tó the fact that he shall be stricken from the rolls in case he does not pay his dues in thirty days.” It appeared,, however, that the notice above provided for had -not -been given. The court held that the expulsion was void and of no effect, on the' ground not only that such a power, as a matter of law, cannot be exercised without notice to the-person charged or without giving him an opportunity to be heard, but'that by the very terms of the by-law itself the right to expel did not exist until a notice in the form-which it required had been, given. ■ As-we have seen, in the case before us no relation whatsoever can be established between the giving of a written notice of arrearage and the conditions which are prescribed to- entitle the representatives of -the deceased to receive any one' of the benefits' provided for upon the decease of .a member. The latter are in no. way dependent upon the former. -

-The court belovl was right in dismissing the éomplaint,. and the. judgment should, therefore,, be affirmed.

Gildersleeve and Giegerich, JJ., concur.

Judgment affirmed, with ’costs.