Ike Wexner, Respondent, v. Daniel Gruenapple, as President of Beer Meisel Lodge No. 8, Independent Order Brith Abraham, Appellant

Ike Wexner, Respondent, v. Daniel Gruenapple, as President of Beer Meisel Lodge No. 8, Independent Order Brith Abraham, Appellant. Second Department, June 18, 1908. Insurance—by-laws of fraternal order—condition precedent to recovery. Where the by-laws of a fraternal order provide that sick benefits are payable only when the elected physician of the lodge and the sick committee report that a member is sick and unable to work, a member cannot recover in the absence of proof that the required certificate was made. Appeal by the defendant, Daniel Gruenapple, as president, etc., from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of January, 1908. Herman Weiss, for the appellant. Henry J. Mayers, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The plaintiff, a member of the defendant lodge, has recovered a judgment for sick benefits for thirteen weeks, amounting to seventy dollars. One of the defendant’s by-laws, prepared by a committee of which the plaintiff was a member, provided : “ Sick benefit is payable only then when the elected physician of the -Lodge and the Sick Committee reports a member sick and unable tó work.” The plaintiff -does not assert that he was not bound by said by-law, and it is undisputed that the physician of the lodge refused tomake the required certificate, but certified to the contrary. Something is said respecting an appeal to the grand lodge, and a decision by that body, but there is no proper proof of such a decision or of any law of the order respecting its effect. The judgment must be reversed. Woodward, Jerks, Hooker and Gaykor, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event,