On appeal from the Supreme Court, whose opinion is reported in 128 N.J.L. 436.
For the plaintiff-respondent, Andrew O. Wittreich and Adolph Abramowitz.
For the defendant-appellant, Powell & Parker (Harold T. Parker).
The opinion of the court was delivered by
CASE, J. The appeal is from a judgment in the Supreme Court which affirmed a judgment of the First Judicial District Court of Hudson County. The judgment was in the amount of $500 and costs in favor of the plaintiff on a death benefit claim growing out of the death of her husband against the defendant fraternal order. It is the contention of the appellant that there are no facts in proof upon which the judgment may be sustained. The Supreme Court held that the decedent's pass book, technically called the "Member's Due Book," although at variance with the defendant's ledger, furnished the evidence upon which the judgment could be sustained and that the District Court Judge could accept that evidence and reject the defendant's ledger as a support for a judgment. The case turns upon whether the proof in the pass book will sustain that finding and it is to that question that we now address ourselves.
The constitution of the defendant order provided in Chapter VI:
"Sec. 4. Any member of this council who shall owe the council thirteen or more weeks' dues, he is debarred from all rights and privileges of the council and Order, except that of being admitted to a seat in his council during its sessions. He is automatically suspended from all sick and funeral benefits without notice.
"Sec. 5. If a member shall become indebted to his council for thirteen or more weeks' dues, he shall stand suspended from sick and funeral benefits for the space of four weeks after he has paid the entire amount of his indebtedness in full to date. If he should leave a balance unpaid he shall not be entitled to sick benefits or funeral benefits until all his indebtedness has been paid in full to date."
Under those provisions, if a member becomes thirteen weeks in arrears for dues his right to benefits is automatically suspended without notice to him and without affirmative action of the council.
The entries in the pass book were made by the representative of the defendant. The pages were printed in columnar form with indicated spaces for the several weeks of each month, one below the other, and corresponding side spaces, so that, when properly filled, the book would show the weeks for which dues had been paid, the bulk amount of each payment, and the date of payment. To illustrate from the showing of the book: The dates January 8th, 15th, 22d, 29th, February 5th, 12th, 19th, 26th, appear in linear form, a separate line to each weekly date. Opposite "Feb. 26" is noted "$3.20; 5/6; M. H. Taylor," and underneath that entry a line is drawn. The unmistakable meaning is that on May 6th, 1940, the decedent paid the sum of $3.20, being for dues at the rate of 40 cents per week for the eight weeks from January 2d to February 26th, inclusive; and that M. H. Taylor, the financial secretary of the Council, certified by his signature to that entry.
On May 6th, 1940, when that payment was made, the decedent was, with equal clarity, until making the payment, in arrears for the payments due on January 8th, 15th, 22d, 29th, February 5th, 12th, 19th, 26th, March 4th, 11th, 18th, 25th, ...