Decided: October 3, 1941.
ANTONIO GIGLIO, PLAINTIFF-RESPONDENT,
MUTUAL BENEFIT SOCIETY OF PALOMONTESI, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT
On appeal from the Second District Court of Jersey City.
For the appellant, Maximilian Morrof (Louis J. Greenberg, of counsel).
For the respondent, Robert S. Hartgrove.
Before Justices Parker, Donges and Colie.
[127 NJL Page 201]
The opinion of the court was delivered by
COLIE, J. Defendant Society appeals from a judgment of $132 and costs entered against it in favor of the plaintiff. Suit was instituted to recover sick benefits to which plaintiff alleged to be entitled. Paragraph 4 of the state of demand recites that "Under the terms of the said Constitution and By-Laws it is set forth as follows: Benefits -- Art. I -- One year after becoming a member a sick member will be paid $9 per week for three months; and $5 per week for the next successive three months. Thereafter it will rest with the society to determine the form and manner of help to be given to the sick member, but in no case is he to be abandoned." At the trial this paragraph was admitted by defendant to be in the constitution of the Society. It was undisputed that plaintiff's illness extended over more than six months; that he received $50 from the Society; that he demanded the balance of $132 claimed to be due under the quoted provision of the constitution and by-laws and that his demand was refused. The defendant sought to avoid payment of the $132 by introducing oral testimony of certain of the officers and members of the Society that the benefit provisions had been lowered and that the $50 paid to plaintiff fully satisfied the Society's duty to the plaintiff.
[127 NJL Page 202]
An examination of the evidence shows that there was a question of fact for the judge, sitting without a jury, to determine; that the judge could have found the fact either way and his determination is final. There is no legal error in the refusal to nonsuit, or in the judgment as rendered.
The judgment appealed from is, therefore, affirmed, with costs.