Dey v. Greenebaum, 82 Hun, 533, 31 N. Y. Supp. 610. The answer to this is that plaintiff did not rely upon such legal presumption, but set forth in its complaint, as limited by its bill of particulars, and introduced in evidence upon the trial, the very instrument upon which it declares that liability is to be predicated against defendants, and by that instrument, not only is any presumption of a valid assignment rebutted, but it affirmatively appears as a matter of law that defendants neither assumed any liability upon the lease nor accepted any assignment thereof.

The judgment appealed from will therefore be affirmed, with costs. Order filed. All concur.

(178 App. Div. 92)

HAYWARD v. HAYWARD.

(Supreme Court, Appellate Division, First Department. May 4, 1917.) EXECUTION 402-AGAINST SALARY.

There is but one way for a judgment creditor to reach an accruing salary, that provided by Code Civ. Proc. § 1391: On the return of an execution unsatisfied, an order may be obtained garnishing a percentage of salary due or to become due.

[Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 1156-1159.]

Appeal from Special Term, New York County.

Action by Marion Hayward against Irving Hayward. From an order denying a motion to vacate sheriff's levy, to vacate order for examination of a third party, and to order a third party to pay over money, defendant appeals. Reversed, and motion granted in part.

LING

Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, DAVIS, and SHEARN, JJ.

Lester B. Nelson and I. Maurice Wormser, both of New York City, for appellant.

Francis C. Nickerson, of New York City, for respondent.

SHEARN, J. This is an appeal from an order of the Special Term denying defendant's motion to vacate and set aside an attempted levy under an execution upon a weekly salary payable to the defendant by the Palace Operating Corporation pursuant to a written contract entered into by the defendant, under the name of Alan Brooks & Co., and the Palace Operating Corporation, for the production of a vaudeville sketch by the defendant, assisted by three other persons provided by the defendant, for which said "Alan Brooks & Co." were to be paid a salary of $665 upon the conclusion of the final performance. The contract was made on January 13, 1917, and its term was one week, commencing on January 15, 1917. Judgment for $1,075 was entered in favor of the plaintiff and against the defendant in this action on January 20, 1917, and execution thereupon was issued to the sheriff of the county of New York upon the same day, and on that day the sheriff caused a notice of levy to be served on the Palace Operating Corporation. Subsequently a third party order in proceedings supplementary to execution was issued, directing the Palace Operating Corporation to ap

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

pear and be examined concerning the alleged fund under its control, and the order restrained the Palace Operating Corporation from transferring or otherwise disposing of the alleged fund.

The plaintiff justifies the levy and the order appealed from by asserting that salary earned is not exempt from execution, and that the only purpose of the provisions of section 1391 of the Code for the garnishment of salary is to provide a means of reaching salaries to be earned in the future by impressing a continuing lien thereon to the extent authorized until the judgment is satisfied. It is quite true that a fund representing a salary earned, whether in the possession of the employer, or of the employé, or of a third person, is not exempt from levy under execution, and that such fund may be seized wherever found. XBut this is no such case. When the execution was issued, there was no fund belonging to the defendant representing salary earned in the hands of the Palace Operating Corporation. The salary was not only not due at that time, but was only partially earned. There is only one way provided by statute for reaching an accruing salary, and that is the means provided in section 1391 of the Code: Upon the return of an execution unsatisfied, an order may be obtained garnishing a percentage of salary due or to become due. If an unpaid salary, due or to become due, could be wholly seized by a judgment creditor under an execution in the manner here attempted, there would be no use or sense in the elaborate provisions made in the Code for an order that an execution issue against salary, which execution shall become a lien on salary due or to become due to an amount not to exceed ten percentum thereof.

So far as concerns the order requiring the Palace Operating Corporation to be examined concerning its alleged indebtedness, and, pending such examination, restraining its disposition of any property belonging to the judgment debtor, the Special Term was right in refusing to vacate the order.

The order must be reversed, and the motion granted, to the extent of setting aside an attempted levy against salary. Order filed. All

concur.

(177 App. Div. 845)

REISS v. SUPREME CONCLAVE, IMPROVED ORDER OF HEPTASOPHS. (Supreme Court, Appellate Division, First Department. May 4, 1917.)

1. TRIAL 177-SUBMISSION OF ISSUES-WAIVER OF OBJECTION-MOTION FOR DIRECTED VERDICT.

Where both parties moved for a directed verdict, and stipulated that it might be directed without the jury's presence, the right to have any question of fact submitted to the jury was waived.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 400.]

2. INSURANCE LAWS.

753(2)—FRATERNAL ORDER-SUSPENSION OF MEMBERS-BY

Where local officers of fraternal insurance order received members' assessments, but failed to remit to Supreme Treasurer, the local order and members were not thereby suspended, and their rights and rights of their beneficiaries forfeited, since the local officers were agents of the supreme For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

body, notwithstanding a contrary rule adopted, providing that local officers were only agents of the members.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1905.]

3. INSURANCE 756(2)—FRATERNAL ORDER-VALIDITY OF BY-LAWS-FORFEITURE OF MEMBERSHIP.

The by-laws of a fraternal insurance order, suspending members upon local officers' failure to remit assessments to supreme body, but providing no notice of forfeiture, although providing for admission into another conclave upon such forfeiture, and upon repayment of dues and assessments, are unreasonable and void.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1918.] 4. APPEAL AND ERROR 927(7)—DIRECTION OF VERDICT-PRESUMPTION.

Where, in action on fraternal insurance policy, suspension of local body being claimed, court directed verdict for plaintiff, it will be assumed that court found there was no enforcement of suspension by supreme body shown by the evidence, notwithstanding provisions in application that in any controversy it would be presumed that officers had performed their duty.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3748.] 5. INSURANCE 755(3)—FRATERNAL ORDER-ACTION BY BENEFICIARY-FAILURE TO PAY ASSESSMENT-WAIVER OF FORFEITURE.

Where local officers of fraternal insurance order, contrary to rules, received assessments after member was in default and during member's fatal illness, without compliance with rules for reinstatement, which was impossible, owing to his illness, but failed to remit to supreme body, which did not waive policy provisions, and in view of by-laws providing that subordinate officers have no power to waive forfeiture provisions, beneficiary could not recover.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1909–1913, 1915, 1916.]

Appeal from Trial Term, New York County.

Action by Johanna Reiss against the Supreme Conclave, Improved Order of Heptasophs. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed.

Argued before CLARKE, P. J., and LAUGHLIN, SCOTT, SMITH, and PAGE, JJ.

William P. Pickett, of Brooklyn, for appellant.

Emil E. Fuchs, of New York City (Robert Seelav, of New York City, on the brief), for respondent.

LAUGHLIN, J. [1] It is not contended on the appeal that there was any question of fact for the consideration of the jury, and, if there were, the right to have it submitted to the jury was waived, for both parties moved for a direction of a verdict and stipulated that it might be directed without the presence of the jury. The defendant is a fraternal beneficiary order, incorporated under the laws of the state of Maryland, and consists of a Supreme Conclave and about 800 local conclaves in different parts of the country, one of which, known as Schubin Conclave, No. 607, was located in New York City. The plaintiff's husband joined it on the 13th day of January, 1908, and received a benefit certificate issued by the defendant on that day, by which it agreed that, if he complied with each and every provision of the laws, rules, and regulations governing the conclave and relating to the bene

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

fit fund, then in force or that might thereafter be enacted, and remain in good standing in the order, it would pay, out of its benefit fund, to his wife, the plaintiff, therein named, on satisfactory proof of his death and upon surrender of the certificate, the sum of $1,000 or not more than the amount of one assessment, in accordance with and under the laws of the order governing said fund, subject to certain conditions and exceptions not material to the question presented for decision. The plaintiff alleged that her husband remained a member of the order in good standing until his death, which occurred on the 2d day of March, 1915. The defendant denied that he remained a member in good standing until his death, and alleged as a defense that the conclave of which he was a member failed to make the monthly remittance for assessments and per capita tax on the 15th day of December, 1915, which had been duly called on the 1st day of November, that year, and failed to pay all subsequent assessments and that the members thereof became suspended thereby, and that plaintiff also failed to pay his assessments and was not in good standing in the order at the time of his death.

[2] We are of opinion that there is no merit in the contention that Conclave No. 607 and all of its members were suspended, and their rights and the rights of their beneficiaries forfeited, owing to the failure of the treasurer of the local conclave to remit the monthly assessments to the Supreme Treasurer; for manifestly, when the members paid their assessments to the financier of No. 607, and he delivered the money to the treasurer, the latter must be deemed to have held it as the agent of the defendant, which enjoined upon him the duty of transmitting the money to it, notwithstanding the fact that it attempted to provide in section 416 of the general laws that the subordinate conclave and its officers should be the agents of the members only, and not the agents of the defendant. See Knights of Pythias v. Withers, 177 U. S. 260, 20 Sup. Ct. 611, 44 L. Ed. 762; Brown v. Supreme Court, etc., of Foresters, 176 N. Y. 132, 68 N. E. 145.

[3] Moreover, although provision was made in section 377 of the general laws for the admission of a member of a suspended conclave into another conclave, application therefor had to be made by him, and he would have been obliged to pay the assessments and dues again, and that did not protect his rights, for the reason that the scheme devised by the defendant for the suspension of a local conclave on failure to transmit the monthly assessments did not provide for notice to the members, and, if it were given effect, their rights and the rights of their beneficiaries might become forfeited without notice or any opportunity to protect their rights, notwithstanding the fact that all assessments due from the members had been duly paid as required by the laws of the order, and therefore I am of opinion that a by-law or regulation adopted by the order, no matter by what name it may be designated, which would accomplish such a result, would be unreasonable and void. See Brown v. Supreme Court, etc., of Foresters, 176 N. Y. 132, 68 N. E. 145.

[4] Furthermore, although the member agreed for himself and his beneficiary in his application for membership that, in any contro

versy, action, or trial arising between him or his beneficiary and the defendant, it should "be presumed and taken prima facie that every officer of said Supreme and of any subordinate conclave, in the sending of notice, and otherwise, has in all respects fully performed his duty and fully complied with all the laws of the Order, and that the burden of proving their failure of such performance or compliance' would be upon him and his beneficiary, still it fairly appears by the evidence, and it must be assumed that it was found by the trial court in directing the verdict, that the Supreme Secretary did not comply with the requirements of section 344 of the general laws of the order providing for the suspension of a local conclave on the failure of its treasurer to transmit the monthly assessments to the Supreme Treasurer, in that he did not record the suspension of the former members of the local conclave and give notice of such suspension to the secretary of the local conclave and to the Supreme Archon, as therein provided.

[5] Section 347 of the general laws of the order made it the duty of each member, among other things, to pay to the financier of his conclave, without notice, 12 regular monthly payments in each calendar year and a per capita tax of 12 cents for each month, and provided that such monthly payments should be due on the 1st day of each calendar month, and payable on or before the last day of the month. Section 356 of the general laws provided that a member failing to pay his monthly assessment, dues, or per capita tax within the time prescribed should thereupon ipso facto be suspended from all rights and benefits of the order, including the rights of his beneficiary, and that such suspension should be complete without any notice or action on the part of his conclave or any officer thereof or of the Supreme Conclave, and that he would remain suspended until reinstated

"by the payment of all arrearages and compliance with all the other requirements for reinstatement, as provided by the laws of the order."

Section 359 provided that such a suspended member might be reinstated within 30 days from the date of suspension by paying to the financier of his conclave the payments, dues, or taxes for the nonpayment of which he was suspended and all accruing payments, dues, or taxes during the suspension, and on his signing a certificate of good health in a form prescribed and furnished by the Supreme Secretary, a copy of which was annexed in an appendix to the printed constitution and laws of the order, and that the reinstatement should become effective only on the receipt of the certificate of health, duly witnessed as therein provided, by the Supreme Secretary.

Section 360 provided that a member failing to obtain reinstatement within 30 days as provided in section 359 might be reinstated at any time within 3 months from the date of suspension by making formal application to his conclave for reinstatement as therein provided, and by undergoing a medical examination, and on the approval thereof by the Supreme Medical Director, and the payment of the dues and taxes. for which he was suspended and those accruing during the period of suspension, and that such reinstatement should be effective only upon

164 N.Y.S.-56