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and 121 New York State Reporter

2. SAME-ELECTION TO DROP MEMBER-NOTICE.

Where a club's by-laws, in effect, gave it the option of dropping a member in arrears, by action of the board of governors, or retaining his name on the rolls, its action in notifying a delinquent member that he would be dropped, unless he paid his dues before a date named, sufficiently indicated its election to drop him, and justified him in assuming that he had been dropped, without seeing to it that the board of governors acted in due form; and he, relying in good faith on that assumption, could not be held liable for subsequently accruing dues.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by the Westchester Golf Club against Cornelius S. Pinkney. From a judgment for plaintiff for less than the amount claimed, it appeals. Affirmed.

Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.

Walter L. Bunnell, for appellant.

Zizinia & Moran (Paul T. Zizinia, of counsel), for respondent.

GIEGERICH, J. The amount involved in this action is small, the plaintiff claiming only $63; but the question presented is one of quite general interest, and must have arisen frequently before, though this seems to be the first time it has been brought to court for decision, either in this or any other state.

The facts are presented in an agreed statement, and are as follows: The plaintiff is an incorporated club, of which the defendant was a member. Prior to May 1, 1902, the dues of the club were $24 per year, payable semiannually on the 1st days of May and November. After May 1, 1902, the dues were increased to $34 per year, payable semiannually on the same dates as before. In 1901 the defendant fell into arrears, not having paid the semiannual dues of $12 on November Ist of that year. Several times thereafter he was notified by the plaintiff of this indebtedness, and finally, in March, 1902, he received a further statement of his indebtedness to the club, with the following notice written thereon in red ink:

day of

"If this account is not paid on or before the -, 1902 [which date was prior to May 1, 1902], you will be dropped from the club without further notice."

The defendant made no answer to this, and never formally resigned from the club.

The following are extracts from the plaintiff's by-laws:

Article 3, § 8: "No resignation of a member shall be accepted until he shall have discharged his entire indebtedness to the club."

Article 6, § 4: "A member desiring to withdraw from the club must signify his intention in writing to the Hon. secretary before the first day of May or November, as the case may be, otherwise he shall be liable to pay his semiannual dues for the succeeding half year."

Article 8, § 2: "The name of any member, who shall fail to pay any fine which may be imposed upon him, or whose dues ledger or house charges shall be in arrears, for fifteen days after notice in writing by the Hon. treasurer of the amount of such indebtedness, shall be posted, together with the amount thereof, on the bulletin board of the clubhouse. The Hon. treasurer shall forthwith notify, in writing, every member so posted of the amount of his fine or indebtedness, and unless the same shall have been paid within thirty days

thereafter, such name shall be dropped from the roll of members by the board of governors."

The agreed statement of facts then proceeds as follows:

"Seventh. That the defendant, relying upon such notice and upon the provisions of the by-laws as above set forth, assumed that the plaintiff would drop him from the club in accordance with its notice, and thereafter said defendant, believing that he was no longer a member of said club, did not tender his formal resignation therefrom, nor did he ever again avail himself of any of the privileges of the club; that the club did not drop defendant's name from its said roll; that from the 1st day of November, 1901, to the 1st day of November, 1903, plaintiff has at all times treated the defendant as a member of said club, has so considered him, and from time to time during said period has sent defendant a statement showing the balance due, according to the books of the club, up to the date of such statement, the last statement showing a balance due plaintiff from defendant of $63. None of said notices were returned by defendant."

The defendant concedes he is liable for $12, with interest from November 1, 1901, while the plaintiff claims $63 principal and $5.38 in

terest.

Under the terms of the contract between the parties, as set forth in the above provisions of the by-laws, the defendant, of his own act, independent of any act of the club, could sever his membership, and escape liability for further dues, only by paying his entire indebtedness to date, and by presenting his resignation. Until he should do these two things, the club could hold him for the regular dues, whether he availed himself of its privileges or not. The club, on the other hand, when a member fell into arrears, had an option either to drop him from its rolls in the manner provided, in which event it could hold him, of course, only for the dues accrued up to that time, or it could refrain from such action, keep him on the rolls, and hold him liable for subsequently accruing dues. The defendant contends that the words "shall be dropped" make that provision mandatory, and that the membership of the one in arrears terminates ipso facto, and without any action of the board of governors. The fact that provision is expressly made for action by the board sufficiently repels this contention, in our opinion, notwithstanding the imperative form of language employed. This case is quite different in the provisions to be construed from McDonald v. Ross-Lewin, 29 Hun, 87. There the by-laws provided, if any member neglected to pay dues and assessments as required, "that then and in such case such membership shall cease and determine at once without notice." Our view that the defendant's membership was not terminated by the mere fact of his delinquency, and without any act of the board, is in accordance with the decision made in Medical & Surgical Society v. Weatherby, 75 Ala. 248. In that case the by-laws provided that the first regular meeting in April should be a meeting for the revision of the roll, at which time the treasurer should report the names of all delinquent members, and that at that meeting all such names should be immediately dropped or stricken from the rolls. It was held that such action at a subsequent meeting in dropping the relator was, in the absence of notice, actual or constructive, to him, unwarranted, and he was reinstated by mandamus.

and 121 New York State Reporter

But, though the defendant's membership, and consequent rights and liabilities, would not cease by the mere fact of his being in arrears, without more, but, on the contrary, some act on the part of the plaintiff was necessary to accomplish that result, still we think the act of the club in sending the defendant notice that he would be dropped, unless he paid the dues before the date named, was a sufficient indication of its election, and warranted him in assuming that the intention so declared had been followed by the proper resolution of the board of governors. That he was legally justified in making such assumption is the only finding necessary to make in order to sustain the judgment. The ninth paragraph of the stipulation makes this the crucial question of the case, in the following language, viz. If the defendant "was legally justified in assuming that he had ceased to be a member of said club on and after the 1st day of May, 1902, then the plaintiff can recover only the sum of $13.44," being the amount of the judgment rendered by the court below. There can be no question but that the notice was sent by authority of the club. Neither can there be any question of the fact of the defendant's reliance. on such notice, nor of his good faith in so relying; this being admitted by the seventh paragraph of the stipulation, above quoted. It being thus admitted that the defendant in fact and in good faith assumed that he would, as notified, be legally dropped from membership, it is difficult to perceive why he should not be held to have been "legally justified in assuming that he had ceased to be a member of the club on and after the 1st day of May, 1902." He was not bound to see to it that he was dropped from the roll of members by the board of governors in due form. Therefore the judgment should be affirmed, but, under the terms of the stipulation, without

costs.

Judgment affirmed, without costs. All concur.

(92 App. Div. 456.)

GRAVES ELEVATOR CO. v. JOHN H. PARKER CO. et al. (Supreme Court, Appellate Division, First Department. March 18, 1904.) 1. PLEADING-AMENDMENT.

Plaintiff, in an action on a contract for doing work and furnishing material, alleged performance, and on trial before a referee sought to amend so as to allege partial performance and a waiver by defendant as to the part not performed. Amendment was offered, when plaintiffs offered their proofs. Defendants did not claim to have been surprised, and had opportunity, at subsequent sessions, to meet the case made by plaintiffs. Held, that the amendment was properly allowed.

2. BUILDING CONTRACT-ARCHITECT'S APPROVAL-SUBContract.

Where a subcontractor agreed to furnish material and labor to be satisfactory to the contractor and architect, the furnishing of a certificate of satisfactory completion by the architect to the contractor, under which the latter received the contract price, was a sufficient compliance with the provisions of the subcontract requiring the architect's approval.

3. SAME-EXTRA WORK.

Where a subcontractor agreed to furnish the materials and do the lathing and plastering work shown on the plans and called for in the specifications, necessary to complete the building, he could not recover as extra

work for work which he was ordered to do as a part of the contract by the contractor and architect, though it was rendered necessary by imperfections in the work of the contractor.

4. SAME-FAILURE TO PERFORM.

Where a building contract was completed to the satisfaction of the architect, and the contract price paid to the contractor, he could not avoid payment to a subcontractor on the ground that the work thereunder was not done in accordance with the subcontract.

Appeal from Judgment Entered on Report of Referee.

Action by the Graves Elevator Company against John H. Parker Company and others. From a judgment in favor of defendants, Albert Oliver and others, and against the first-named defendants, they appeal. Modified.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

Joseph Fettretch, for appellant John H. Parker Co.
Henry Schoenherr, for respondents.

INGRAHAM, J. The question presented upon this appeal involves the right of the respondents (defendants) to recover from the appellants (codefendants) the balance due upon a contract made for plastering a building which was in course of erection by the appellants for the city of New York. The respondents filed a lien against the amount due to the appellants from the city, and the appellants subsequently gave the bond upon which the lien was discharged, and the question presented is as to the right of the respondents to recover from the appellants the balance due upon the contract.

The answer of the respondents, which was served upon the appellants, alleges a complete performance of the contract. All of the issues in the action were referred to a referee, and after one of the respondents had been called as a witness, and it appeared that they had not fully performed their contract, an application was made to the referee to amend the answer by setting up that the contract had been performed, with certain exceptions specified, of which performance was waived by the appellants. This amendment was allowed, to which the appellants excepted, claiming that the referee had no power upon the trial to allow such an amendment. There was no claim of surprise. The case was on trial before a referee. The amendment was made when the respondents offered their proof, and it is not claimed but that the appellants had ample opportunity at subsequent sessions of the reference to meet the case presented by the respondents.

We think the referee had power to allow the amendment. The action is upon a contract by which the appellants agreed to pay to the respondents a sum of money for furnishing the material and doing certain work in the construction of this building. Whether the right to recover was based upon a complete performance of the contract or a performance with the exception of certain particulars, the perfor:nance of which was waived by the appellants, did not change the cause of action for which a recovery was sought. The cause of action was still upon the contract, to recover the amount due under it. The court has power to allow an amendment upon the trial where the ar.endment does not substantially change the cause of action to which the amend

and 121 New York State Reporter

ment relates; and, as this cause of action was not at all changed by the amendment, there can be no doubt, we think, but that it was within the power of the referee to allow it.

By the contract which is the basis of this cause of action the respondents agreed "to furnish the materials for and do all the lathing and plastering' work shown on plans and called for in the specifications necessary to complete the building known as Museum Building & Power House, in Bronx Park, N. Y. * All the materials

and labor to be satisfactory to R. W. Gibson, architect, and John H. Parker Company;" and the respondents further agreed to do all necessary cutting, drilling, and patching in connection with other mechanics, and to remove from the premises, from time to time as directed, all dirt and rubbish caused by their work, and for this the appellants agreed to pay the sum of $15,700. The contract between the appellants and the city specified the plastering to be done, and it was the necessary plastering called for by this contract that the respondents agreed to do and for which they were to be paid. After the respondents had completed their work, and the contract between the appellants and the city had been completed by the appellants, the architect gave the appellants a certificate which in effect stated that the work called for by the contract with the city had been performed as required by the contract and in a satisfactory manner, and under it the appellants received from the city the contract price. We think that this was a sufficient compliance with the provisions of the contract between the appellants and the respondents as to the approval of the architect, and that the respondents were entitled to recover, subject, of course, to proof that the portions of the contract not performed by the respondents had been waived by the appellants, or that the work had been accepted by them as a complete performance of the con

tract.

The only serious question presented is as to the correctness of the allowance made by the referee for the uncompleted work and for what was alleged to be extra work. The referee disallowed several claims made by the respondents for extra work; but, as there is no appeal by the respondents from the judgment, the correctness of the finding of the referee in this respect need not be considered. The referee found that prior to the filing of their notice of lien the respondents had substantially performed their contract, except in certain particulars as to which performance was waived by both the appellants and the city; that the respondents were compelled to do extra work and furnish some extra materials in and about the work which they were required to do by their contract, which extra work and materials were rendered necessary by the acts and facts for which the John H. Parker Company was responsible as between them and the respondents. The referee then allowed the contract price also for certain extra work which was admitted by the appellants, and for certain extra plastering caused by defective brickwork and construction, or made necessary by water or frost, aggregating $503.30. For this sum of $503.30 I do not think the appellants are responsible. The allowance is based upon the testimony of one of the respondents, and it was claimed that this extra plastering was made necessary by the imperfect manner

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