Frederick Shirtcliffe, Appellant, v. James J. Wall, as President of Shaftesbury Lodge, No. 135, Order Sons of St. George, Respondent

Frederick Shirtcliffe, Appellant, v. James J. Wall, as President of Shaftesbury Lodge, No. 135, Order Sons of St. George, Respondent. Sick benefits — not enforced in the cowrts until the remedies within the association are exhausted—New York Municipal Court—amendment of pleadings in. A member of a voluntary association organized for benevolent purposes, who is present at a meeting of the association at which the members voted against the payment to him of sick benefits to which he claimed to be entitled, and who has not resorted to any of the remedies within the order, as he was required to do by the constitution of the association, cannot maintain an action at law to recover such sick benefits. The Municipal Court of the city of Hew York has power, under section 2944 of the Code of Civil Procedure, to allow an amendment to a .pleading, although it may involve a new- cause of action or a new defense. Subdivision 6 of section 3347 of the Code of Civil Procedure, which makes sec- . tian 723 of that Code, authorizing the court to permit certain amendments, applicable to all courts, was not intended to limit the broad powers of amendment conferred upon the Hew York. Municipal Court by section 2944, but," on the contrary, was designed to make such powers of amendment more definite. Appeal by the plaintiff, Frederick Shirtcliffe, from a judgment of the Municipal Court of the city of Mew York, borough of. Brooklyn, in favor of the defendant, entered on the 13th day of May, 1901, upon the decision of'the court, The action', was brought to recover sick benefits, to which the plaintiff claimed to be entitled as a member of the defendant society, which is a voluntary association organized for benevolent and social purposes. Edwin D. Kenyon, for the appellant. Arthur A. Miehell, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The plaintiff admitted that.he was present at a meeting of his lodge where the members voted against payment of sick benefits to him, and that he never appealed to any tribunal or to the committee of appeals and grievances. The constitution of the grand lodge of the State of Mew York, which applies fo every member of the defendant, provides by article 9, section 4, that the committee on appeals and grievances shall hear all appeals from decisions of district grand committees, and all appeals and grievances from subordinate lodges and members thereof. There is evidence upon which the learned trial court could determine that this remedy was clear to.the plaintiff in this claim against the defendant. I think that as. the plaintiff did not resort to the remedy prescribed by the constitution, which was the contract between him and the defendant, the-judgment of the court was justified and may be affirmed. (Lafond v. Deems, 81 N. Y. 507, 514; Poultney v. Bachman, 31 Hun, 49, Johansen v. Blumie, 53 App. Div. 526.) I think the court had power to allow the amendments to the answer. In Hawhes v. Burke (34 Misc. Rep. 189) the Supreme Court, Appellate Term, per O’Gorman, J., held that a Municipal Court may grant an amendment to the pleadings, although it may involve a new cause of action or a new defense. The reasoning of the opinion seems to me correct and cogent. The learned counsel for the appellant criticises this decision upon two grounds. First, in that the learned court failed to take into consideration section 723 of the Code of Civil Procedure, which by subdivision 6 .of section 3347 thereof, is made applicable to all courts. But I think that the extension of this section to all courts was not intended to limit the broad powers of amendment conferred upon Municipal Courts by section 2944 of the Code, but on the contrary to make their powers of amendment more definite. Second, it is contended that the Legislature would not be presumed to clothe justices of the peace (or the Municipal Courts) with powers greater than those conferred upon the Supreme Court. The answer is that the powers conferred upon the Municipal Court are no greater than those inherent or conferred upon the Supreme Court at its Trial and its Special Terms. Section 2944 makes provision for an adjournment in case a party amends his pleading, and thus practically affords similar protection to the opposite party as though in an action in the Supreme Court he had been sent from the Trial to the Special Term. I think that the other amendments were within the power of the Municipal Court. Judgment affirmed, with costs. All concurred. Judgment of the Municipal Court affirmed, with costs.