Action by Bertha B. Grad against Apolo Tumminelli. From an order finding defendant guilty of contempt of court, and imposing on him a fine of $256.91 and costs, and also an order denying his motion for a reargument of such motion, defendant appeals. Reversed, and motion to punish for contempt denied. Appeal from order denying reargument dismissed. Argued December term, 1917, before GUY, BIJUI, and PHILBIN, JJ. Joseph & Alvin T. Sapinsky, of New York City, for appellant. GUY, J. On April 27, 1917, plaintiff, the landlord of defendant, obtained judgment in this action against him for $256.91, rent of the demised premises. At the close of the trial defendant obtained five days' stay of execution. Plaintiff claimed that, after obtaining the stay, defendant, who occupied the store in the demised premises, sold out his interest in the store; and her application to punish defendant for contempt of court in selling the property during the pendency of the stay was granted, defendant being fined the amount of the judgment, with costs. Defendant thereupon, on additional affidavits, moved for a reargument, and the motion was denied. The question presented is, not whether a transfer was made in fraud of defendant's creditors, but whether defendant was guilty of contempt of court as charged, and a careful examination of the facts compels the conclusion that the finding that defendant made the transfer pending the operation of the stay is against the evidence. [1, 2] It appears, from the affidavit of plaintiff's attorney handed upon the motion to vacate the stay, that defendant told the attorney on April 25, two days before the trial, that plaintiff would be unable to enforce the judgment; that the person who held the chattel mortgage on the store fixtures was going to sell them, and the place would be cleaned out by Friday unless some arrangement was made with the landlord, and on the day of the trial defendant and his attorney told the plaintiff's attorney that defendant was judgment proof. Plaintiff's attorney also swears that on the night of April 27, that being the date of the trial, he went to the store and found a person other than the defendant in possession under a bill of sale dated and acknowledged April 26. The purchaser of the business swore that the transfer was arranged April 25 and closed on the following day; and on the motion for reargument the commissioner of deeds, who witnessed the paper and certified to its acknowledgment, swore that it was executed and acknowledged April 26, the day of its date. It was claimed by defendant that the proceeds of the sale, $460, went to the chattel mortgagee on account of defendant's alleged indebtedness of $600 to him. That defendant disposed of his property in anticipation of a judgment against him did not constitute a contempt of court. Order finding defendant guilty of contempt reversed, with $10 costs, and motion denied, with $10 costs. Appeal from order denying motion for reargument dismissed. All concur. COMMERCIAL CABLE BLDG. CO. v. McKENNA. (Supreme Court, Appellate Term, First Department. January 2, 1918.) 1. EVIDENCE 182-SECONDARY EVIDENCE-ABSENCE OF FOUNDATION-MAILING OF LETTER. A copy of a letter was improperly received in evidence over defendant's objection and exception, without sufficient foundation being laid for the introduction of secondary evidence by any competent proof that such letter was ever mailed. 2. TRIAL105(5)—IMPROPER ADMISSION OVER OBJECTION-RIGHT TO BENEFIT OF FULL PROBATIVE FORCE. A copy of a letter giving notice of an increase in rent from plaintiff landlord to defendant tenant having been improperly received in evidence over defendant's objection, without sufficient foundation being laid for the introduction of secondary evidence by competent proof that the letter was ever mailed, plaintiff was entitled to have the benefit of the full probative force thereof. 3. LANDLORD AND TENANT 200(3)-DEFINITE NOTICE OF INCREASE OF RENT -HOLDING OVER. Where a tenant, after receiving definite notice of an increase of rent from May 1st, continued in possession thereafter, he held over at the increased rate, and was liable therefor to his landlord. Appeal from Municipal Court, Borough of Manhattan, First District. Action by the Commercial Cable Building Company against Thomas P. McKenna. From a judgment for plaintiff, plaintiff appeals. Judgment reversed, and new trial ordered. Argued December term, 1917, before GUY, BIJUR, and PHILBIN, JJ. Wm. W. Cook, of New York City (J. L. Farrell, of New York City, of counsel), for appellant. Bernard C. McKenna, of New York City, for respondent. GUY, J. The action was brought to recover rent for a suite of offices for the months of May and June, 1917, at the rate of $1,500 per year, payable $125 monthly. The answer is a general denial and a separate defense of tender. On August 26, 1914, plaintiff entered into a written lease with defendant for the said premises for a term of eight months ending May 1, 1915, at a yearly rental of $1,200, payable monthly in advance. On March 27, 1917, plaintiff wrote defendant as follows: "At this time we should know what arrangement you wish to be made in respect to a future lease. We have not signed lease with you; the rental arrangement expiring automatically at May 1, 1917. In view of the fact that you are now paying a low rental rate, and that we are having to meet considerably greater expenses in consequence of advances in wages, cost of supplies, etc., we are compelled to increase the rental rate. We therefore propose that, as a fair arrangement, we will make a one or two year lease with you as from May 1, 1917, at the increased rate of $1,500 per annum. * We ask you to please let us know your decision within the next few days." On April 2, 1917, defendant replied to plaintiff's letter of March. 27th: For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes "Owing to the high cost of living, and other expenses, * * * I therefore feel that the rent I have been paying in the past is fully as high as I care to go. As there is considerable unrented space in this building, I would suggest that my tenancy continue on a monthly basis at the same rent as heretofore; you having the privilege of showing the office and of letting at any time you have the opportunity, and I would be willing to vacate on short notice." On April 3d, plaintiff wrote defendant: "We cannot agree to your proposal. We therefore must ask you to decide this week whether you intend to accept our proposition of a lease from May 1, 1917, at a rental of $1,500 per annum." No reply coming from defendant to this letter, plaintiff on April 13, 1917, wrote: "You do not reply to our letter of April 3d, respecting the increased rental at May 1st. We therefore shall endeavor to lease the two rooms as from May 1, 1917, unless we hear from you by the beginning of next week." No reply was made by defendant to this letter, and defendant continued in possession of the offices during the months of May and June. On May 1st defendant wrote plaintiff, inclosing bill for $125 for rent for the month of May, at the rate of $1,500 per year. Defendant replied, returning the bill for $125, as follows: "As I have already written you and told your representative, I only remained on the understanding that I would not pay more than $100 per month, the same amount as during the past year." To which plaintiff replied, again inclosing the bill for May rent, with the request that— "it be paid in accordance with our letters of April 3d and April 24th, or we shall place the matter in the hands of our attorney." [1] The letter of April 24, 1917, from plaintiff to defendant, a copy of which was improperly received in evidence over the objection and exception of defendant, no sufficient foundation being laid for the introduction of secondary evidence by any competent proof that said letter was ever mailed, reads as follows: "Referring to our letter of April 13th, to which we have had no reply, we have to notify you that the rental of Rooms 920-921 will be at the rate of $1,500 per annum as from May 1, 1917." Defendant denied receiving said letter. Subsequently defendant tendered to plaintiff $200 as rent for the months of May and June, which tender was refused. [2] The correspondence between plaintiff and defendant prior to April 24, 1917, appears to have been rather by way of negotiation, and nowhere contains a definite notice by the landlord to the tenant that, if he remained in possession after May 1st, the rent would be increased to $1,500 per annum, and but for the admission of said letter it would have been the duty of the court to direct a verdict in favor of the defendant; but, the letter having been admitted, plaintiff was entitled to have the benefit of the full probative force thereof. Flora v. Carbean, 38 N. Y. 111. [3] It is a definite notice of an increase of rent, and the continuing in possession by plaintiff thereafter constituted a hold-over at the increased rate of $1,500 per year. "He must be deemed to assent to pay such increased rent. * * * He cannot hold the premises after such notice and fix his own terms for the rent." Mack v. Burt, 5 Hun, 28. See, also, Stein v. Sutherland, 92 N. Y. Supp. 314. The judgment must therefore be reversed, and a new trial ordered, without costs. All concur. CONEEN v. SCHNEIDER. January 2, 1918.) (Supreme Court, Appellate Term, First Department. BENEFICIAL ASSOCIATIONS 10(2)-FORFEITURE OF MEMBERSHIP-Causes. The laws of a society, formed to provide relief for its members in case of sickness and a benefit at time of death, confined its membership to the employés of a publishing company, and provided that, upon any member quitting the employ of such company, his membership should cease, and he should receive a pro rata share of the assets of the society. The laws of a typographical union provided that, where members of the union were admitted to the Union Printers' Home, their situations might be filled by the foreman, provided that, upon again reporting for duty, their situations should be restored to them. Held that, assuming that the laws of the society were to be read in the light of the laws of the union, still the membership in the society of one entering the Printers' Home while receiving sick benefits did not cease, so as to deprive him of the right to a continuance of the benefits, as the laws of the society contemplated a voluntary abandonment of the employment, and moreover the laws of the union, by providing for restoration of the situation, plainly intimated that the entry into the home did not sever the member's relation with the union or with his situation. Appeal from Municipal Court, Borough of Manhattan, First District. Action by William H. Coneen against William Schneider, as treasurer of the Evening Mail Protective Society. From a judgment dismissing the complaint, after a trial by a judge without a jury, plaintiff appeals. Reversed, and new trial ordered. Argued December term, 1917, before GUY, BIJUR, and PHILBIN, JJ. William Ferguson, of New York City, for appellant. Kendall & Herzog, of New York City (Julius Walerstein, of New York City, of counsel), for respondent. BIJUR, J. This appeal involves solely the construction of certain provisions in a by-law of the defendant organization. The constitution and by-laws, as pleaded by defendant, read: "Name and Object.-This society shall be known as the Evening Mail Protective Society, and is formed for the purpose of creating a fund to be used for the relief of its members in case of sickness and a benefit at time of death. Its membership shall be confined to male employés of the Evening Mail For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Publishing Company earning $24 a week or more. No person can hold membership in this society while owing money to any other benefit which he refuses to pay. "Resignation.-Upon any member quitting the employ of this company his membership ceases, and he shall receive a pro rata share of the assets of the society at the time of his leaving, including his initiation fee." Plaintiff was an employé of the Evening Mail newspaper, and a member of the defendant organization, when stricken with some tubercular illness. He was compelled to go to the West. Under the bylaws of defendant he was entitled to a sick benefit of $15 per week for 16 weeks during 12 consecutive months. He received the benefit payments for 11 weeks, at the end of which time he entered the Union Printers' Home. Certain extracts from the Book of Laws of the International Typographical Union were also introduced in evidence. Section 121 provides that foremen of printing offices may employ and discharge help, such discharge to be, however, for the causes named in the by-law. Section 127 reads: "In cases where members are admitted as residents of the Union Printers' Home, or who enlist for active service in the regular army or navy in time of war, or members of the National Guard who may be ordered to war, their situations may be filled by the foreman: Provided, that upon again reporting for duty the situations formerly held by these members shall be restored to them." Plaintiff offered these rules in evidence, and defendant's counsel objected that they were not binding on the defendant, and added that membership of the defendant was not confined merely to members of the union; but the objection was overruled. Defendant-respondent's position is in substance that, when a member of the defendant society enters the Union Printers' Home, the provision of section 127 of the Typographical Union Laws require that he should be regarded, under defendant's by-laws, as "quitting the employ of this company," and that thereupon "his membership ceases." The learned judge below has apparently accepted that view, but I am unable to concur in this conclusion. It appears that the employment and discharge of printers is governed by the rules of the Typographical Union that when a member is ill a substitute may be appointed, either actually or theoretically a man of his own choice, and that course was adopted in the case of the plaintiff until he entered the Union Printers' Home. Thereupon both the names of plaintiff and his substitute were taken off the pay roll. We are not concerned with the correctness of that course, except in so far as it might affect the membership of plaintiff in the defendant organization and his right to a continuance of his sick benefit for the remaining 5 weeks. The testimony adduced by the defendant affords no sound basis for the conclusion that the constitution and by-laws of the defendant are to be construed in the light of the Book of Laws of the International Typographical Union. Indeed, the statement made by defendant's counsel to the effect that membership in the defendant society is not |