#### Filomena Giniso, Respondent, *v.*The Calabrian American Citizens’ Mutual Benefit Association, Appellant.

(Supreme Court, Appellate Term,

February, 1910.)

Fraternal and mutual benefit associations — Forfeiture, suspension or resignation: Forfeiture or non-payment of dues and assessments: Waiver of forfeiture — Effect of payment of dues to one not authorized to reinstate.

Where the constitution of a mutual benefit association provides that a member who does not pay his regular monthly dues or fees for two months and at the regular meeting of the third month *163fails to put himself into good standing shall be considered in arrears, and that if the arrearage continues three months the member will be declared suspended from the society, and where a member remains in arrears for eight months it operates *ipso facto*and without any further action on the part of the association as a suspension from membership.

In such a ease, the payment by the beneficiary of a sum of money a few days before the death of a member to the financial secretary and its acceptance by the financial secretary who gave a receipt therefor but afterward called on the beneficiary and returned the money, do not establish a waiver of the member’s default on the' part of the association.

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan.

Leonard A. Snitkin (Abraham H. Sarasohn, of counsel), for appellant.

Baker & Hyman (Sol A. Hyman, of counsel), for respondent.

Seabury, J.

The plaintiff, as the widow of one Vincenzo Giniso, has recovered judgment for $250 and costs against the defendant, a membership corporation. The plaintiff’s husband was a member of the defendant. Under the constitution and by-laws of the defendant it was required to pay, upon the death of one of its members in good standing, an endowment of $250.

It appears that, on March 1, 1909, there was due from the plaintiff to the defendant the sum of nine dollars and ten cents. The husband was in arrears for over eight months. Article 21 of the defendant’s constitution provides as follows: *“A*member who does not pay his regular monthly dues or fines for two months and at the regular meeting of the third month fails to put himself into good standing, is considered in arrears. This arrearage continuing for three months more, the member will be declared suspended from the society.”

On March 18, 1909, the husband of the plaintiff died. The other facts in the case were disputed and the court hav*164ing rendered judgment for the plaintiff, we assume that the facts testified to by the plaintiff were true.

From this evidence it appears that, on March 1, 1909, the plaintiff paid the financial secretary of the defendant nine dollars and ten cents and received a receipt for the same, and that fifteen days later the financial secretary called on the plaintiff and offered to return this money to her and, upon her refusal to accept it, threw the money on the floor and went away.

.The first question to be determined is whether the fact that the deceased was in arrears for eight months operated, *ipso facto*and without any further action on the part of the defendant, as a suspension of the deceased from membership in the defendant. We think the question should be answered in the affirmative. Paster v. Nagelsmith, 30 Misc. Rep. 791.

The only other question requiring discussion is whether the acceptance of the nine dollars and ten cents by the financial secretary was a waiver of the default of the plaintiff’s husband in the payment of his dues and effected his reinstatement. We think that the facts proved failed to establish such a waiver on the part of the defendant, or that the financial secretary had power to waive the provision of the defendant’s constitution and by-laws. Hart v. Adams Cylinder & Web Press Printing Assn., 69 App. Div. 578.

The plaintiff having failed to establish a waiver, the deceased had not at the time of his death been reinstated as a member of the defendant; and the plaintiff cannot recover in this action.

Lehman and Bijur, JJ., concur.

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