On appeal from a judgment of the Passaic County Circuit Court.
For the defendant-appellant, Leo Chrisman, Irving I. Rubin and Leo Yanoff.
For the plaintiff-respondent, Archibald Krieger.
The opinion of the court was delivered by
DONGES, J. Suit was brought in the Passaic County Circuit Court to recover certain death benefits and funeral expenses following the death of plaintiff's husband, Julius Feldman, who was a member of Silk City Benevolent Association, the defendant-appellant. The allegation in the complaint is that Feldman was admitted to membership on December 6th, 1908; that he paid all dues and assessments, and upon his death plaintiff was entitled to receive certain benefits; these benefits under the by-laws and constitution were the sum of $300 as death benefits and $45 as funeral expenses; that plaintiff has complied with all rules and is entitled to recover.
The answer denied the truth of the matters contained in the complaint and further set up as a separate defense that plaintiff was not entitled to any moneys under the by-laws, constitution and rules and regulations of the defendant association.
Motion was made to strike the answer. In the affidavit of plaintiff it was asserted that Feldman paid all dues and assessments required to be paid. It further appeared in her affidavit that she was relying upon the by-laws of the defendant association as they existed at the time of the admission to membership of her husband.
The defendant replied by an affidavit of its secretary that Feldman had not paid all dues and assessments required of him up to the time of his death, and that he was at that time in arrears for five quarters.
The pertinent portions of the by-laws as they existed at the time of Feldman's admission to membership were as follows:
"1. If a member has not fully paid up his dues and indebtedness at the meeting, of last payment, to wit: second meeting after the general meeting, he shall not be entitled to any of the Lodge Benefits.
"2. Every member who fails to pay the dues, assessments, taxes, fines or other indebtedness, at the third meeting after the general meeting shall be stricken from the roll of members after the secretary has sent a registered letter to the delinquent member.
"3. A brother in arrears shall not be entitled to any benefit for a period of thirteen weeks after payment."
It appears by the affidavit on behalf of the defendant that the constitution and by-laws of the association at the time of Feldman's admission as a member, and at all times thereafter, provided "All death benefits and funeral expenses are to be determined by this constitution and by-laws and all regularly adopted amendments." On December 9th, 1934, article XI was amended to provide generally that a member who was in arrears for one quarter was not entitled to either sick benefits or any other benefits, ...