In re Carthage Lodge, No. 365, I.O.O.F.

• Decision Date: 11 March 1916
• Citation: 230 F. 694
• Parties: In re CARTHAGE LODGE, NO. 365, I.O.O.F.
• Court: U.S. District Court — Northern District of New York

230 F. 694

In re CARTHAGE LODGE, NO. 365, I.O.O.F.

United States District Court, N.D. New York.

March 11, 1916

This is a motion or application by certain of the creditors of Carthage Lodge, No. 365, Independent Order of Odd Fellows which has been adjudicated a bankrupt, to vacate and set aside the adjudication and dismiss the proceedings, on the ground mainly that a subordinate lodge of Odd Fellows organized and existing under the laws of the state of New York, is neither a person nor a corporation, nor subject to nor entitled to the benefits of the Bankruptcy Act of 1898 as amended in 1910, and cannot be adjudged a bankrupt under the provisions of said act.

W. B Van Allen, of Carthage, N.Y., for the motion.

Porter & Porter, of Carthage, N.Y., opposed.

RAY District Judge.

December 10, 1915, Carthage Lodge, No. 365, Independent Order of Odd Fellows, of the village of Carthage, Jefferson County, N.Y., filed its voluntary petition in bankruptcy praying that:

'Wherefore your petitioner prays that it, the said Carthage Lodge, No. 365, Independent Order of Odd Fellows, may be adjudged by the court to be a bankrupt within the purview of said acts'

-- referring to the acts set out in the petition. The petition says:

'The petition of Carthage Lodge, No. 365, Independent Order of Odd Fellows, of the village of Carthage, Jefferson county, N.Y., and district of Northern New York, and state of New York, and having its principal place of meeting and business at said village of Carthage, in said district and state, respectfully represents.'

The petition then states:

'That said Carthage Lodge, No. 365, Independent Order of Odd Fellows, is a benevolent order, incorporated, organized, created, and existing under and by virtue of the law of the state of New York known as the Benevolent Orders Law, and that it has had its principal place of meeting and the place for the transaction of its business at the village of Carthage, Jefferson county, N.Y., for the entire period of time during the six months next immediately preceding the filing of this petition.'

The petition then sets out that the Carthage lodge owes debts which it is unable to pay in full, and that it is willing to surrender all of its property for the benefit of its creditors, and desires to obtain the benefits of the acts of Congress relating to bankruptcy. The petition then states:

'That at a regular meeting of said Carthage Lodge, No. 365, Independent Order of Odd Fellows, held in its lodgerooms in the village of Carthage, Jefferson county, N.Y., on the 10th day of August, 1915, a resolution was then and there duly and legally adopted and entered in the minutes of said meeting consenting to be adjudged bankrupt, within the purview of the act of Congress relating to bankruptcy, and empowering and directing the trustees of said Carthage Lodge, No. 365, Independent Order of Odd Fellows, in their name and in the name of said Carthage Lodge, No. 365, Independent Order of Odd Fellows, to execute and file a petition praying that such an adjudication be made, a copy of which resolution is hereto annexed and is hereby referred to as forming a part of this petition.'

To the petition was annexed the schedules in accordance with law. This petition was signed:

'By Herman J. Starkweather, Thomas W. Da Foe, J. F. Arthur, Trustees of Carthage Lodge, No. 365, I.O.O.F.'

It was duly verified by these trustees on the 19th of November, 1915. A certified copy of the resolution referred to, authorizing the institution of the bankruptcy proceedings, is also annexed to the petition. In signing and executing same the trustees did not sign the name 'Carthage Lodge, No. 365, Independent Order of Odd Fellows. ' However, adjudication was actually made on the petition.

The articles of incorporation or certificate of incorporation of said Carthage Lodge, No. 365, Independent Order of Odd Fellows, reads as follows:

'Whereas, the members of Carthage Lodge, No. 365, I.O.O.F., chartered by and under the jurisdiction of the Grand Lodge of the State of New York are desirous of having the benefit of chapter 377 of the Laws of 1896, entitled 'An act in relation to benevolent orders, constituting chapter 44 of the General Laws,' and acts amendatory thereof and supplementary thereto:

'Now, therefore, we, the undersigned officers of said Carthage Lodge, do hereby certify that at a regular meeting of said Carthage Lodge, No. 365, I.O.O.F., held in their rooms at Carthage, Jefferson county, N.Y., on the 6th day of March, 1906. F. M. Galloway and M. C. Paul and E. C. Lovjoy were duly elected as trustees for said lodge for the purposes of said acts, in accordance with the constitution and general rules and regulations of the Grand Lodge under the jurisdiction of which said Carthage Lodge is chartered and in conformity to the by-laws of said Carthage Lodge, and that the persons so elected then were and now are members of said Carthage Lodge, No. 365, I.O.O.F., in full membership and in good and regular standing therein.

'We further certify that the said trustees so elected were and have been divided by lot by the officers making this certificate of election as follows: E. C. Lovjoy, for one year. M. C. Paul, for two years. F. M. Galloway, for three years.

'We further certify that each of said trustees has duly accepted said office and qualified as such.

'In witness whereof, we, the undersigned, the Noble Grand, Vice Grand, and Recording Secretary of Carthage Lodge, No. 365, I.O.O.F., being the first three elective officers of such lodge, have hereunto signed and acknowledged this certificate of election, and affixed the official seal of said lodge hereto, this 6th day of March, 1906, and file the same for the purposes hereinbefore specified.

'(Seal.)

J. E. Gay, N.G. 'W. H. Sylver, V.G. 'A. C. Root, R.S.

'State of New York, County of Jefferson-- ss.:

'On this 6th day of March, 1906, before me personally appeared Jesse E. Gay, William H. Sylver, and Arthur C. Root, to me known to be the same persons mentioned and described in and who executed the foregoing instrument, and they severally duly acknowledged that they executed the same.

'(Seal of Notary.)

Leander E. Bossout, Notary Public.'

This certificate or article of incorporation was filed and recorded in the office of the secretary of state of the state of New York on the 14th day of March, 1906. Thereafter this lodge did business as authorized by its charter or articles of incorporation and the laws of the state of New York, and incurred debts and obligations which it was unable to pay, and as to this there is no question or dispute. The unsecured debts of the lodge amounted to $16,686.91.

By chapter 11, Laws of 1909 of the state of New York, entitled 'An act relating to benevolent orders,' constituting chapter 3 of the Consolidated Laws, it is provided, 'This chapter shall be known as the 'Benevolent Orders Law," and

'Sec. 2. Organization. Either of the following orders: * * * A lodge of Odd Fellows, duly chartered by and installed according to the general rules and regulations of the Grand Lodge of the Independent Order of Odd Fellows of the state of New York * * * -- may elect at any regular communication, convocation, encampment or other regular meeting thereof, by whatever name known, held in accordance with the constitution and general rules and regulations of such grant lodge, * * * three trustees for such lodge. * * *

'Sec. 3. Powers. Such trustees may take, hold and convey by and under the direction of such lodge, * * * all the temporalities and property belonging thereto, whether real or personal, and whether given, granted or devised directly to it or to any person or persons for it, or in trust for its use and benefit, and may sue for and recover, hold and enjoy all the debts, demands, rights and privileges, and all buildings and places of assemblage, with the appurtenances, and all other estate and property belonging to it in whatsoever manner the same may have been acquired, or in whose name soever the same may be held, as fully as if the right and title thereto had been originally invested in them; and may purchase and hold for the purpose of the lodge, * * * other real and personal property, and demise, lease and improve the same. They may also issue their bonds or other evidences of indebtedness in such amounts and for such time and in such form as they shall determine for the exclusive purpose of raising money to pay for any real estate purchased and held by them, and for the improvement of the same, as hereinabove provided, and may mortgage such real estate for the purpose of securing the bonds or other evidences of indebtedness so issued by them. The proceeds of such bonds or other evidences of indebtedness shall be applied exclusively to pay for such real estate and the improvement thereof. Every such lodge, * * * may make rules and regulations, not inconsistent with the laws of this state, or with the constitution or general laws of the grand lodge or other governing body to which it is subordinate, for managing the temporal affairs thereof, and for the disposition of its property and other temporal concerns and revenue belonging to it, and the secretary and treasurer thereof, duly elected and installed according to its constitution and general regulations and law, shall, for the time being, be ex officio its secretary and treasurer. * * *

'Sec 5. Powers of Trustees. Such trustees shall have the care, management and control of all the temporalities and property of the lodge, * * * and they shall not sell, convey, mortgage or dispose of any property except by and under its direction, duly had or given at a regular or stated communication, convocation, encampment or meeting...