Opinion
July 29, 1910.
F.P. Trautmann, for the appellant.
Clinton T. Roe, for the respondent.
This is an appeal from a judgment of the Municipal Court of the city of New York in favor of the plaintiff for the sum of $250, as the death benefit accruing to the plaintiff on account of the death of her husband while a member of Goethe Lodge, No. 193, of the Independent Order of Odd Fellows. Whether this judgment can stand or not depends entirely upon the correct translation of subdivision 12 of article 11 of the constitution and by-laws of the lodge, which are printed in German.
As to a part of these by laws there is an agreement between counsel as to the proper translation, but as to the part practically determining this action there is a conflict. These by-laws provide certain benefits attached to membership in the society, and impose penalties for non-payment of the dues and charges at the times therein prescribed. The defense was that the plaintiff's husband was at the time of his death under a penalty which excluded him from the regular benefits set forth in the by laws, which penalty had arisen from his failure to pay in June, 1905, the dues and charges then accruing. These dues were paid later, in August, 1905, and the decedent died in the following October. The nature of the penalty prescribed in the by-laws was the chief subject of dispute between the parties.
It appears that on the trial of the action the constitution and by-laws as printed in German were offered in evidence without a stipulation or proof as to the English translation. The learned justice who presided at the trial, believing himself to be familiar with the German language, suggested that the respective counsel submit to him their translations of the sections of the documents which related to the cause of action, that he might compare these translations with the original German, and determine for himself wherein the true translation was shown. The respective counsel followed this course, and we have before us now on appeal the original German and the respective translations. These translations differ radically as to one word, which is of so much importance that its proper translation determines the existence or non-existence of a cause of action on the part of the plaintiff. The learned court seems to have accepted the translation proposed by the plaintiff. Were we to imitate him in a trial of linguistic knowledge, we should be inclined to accept the translation proposed by the defendant. We shall not, however, be tempted into this trial, as it is not the part of a court of law to take judicial cognizance of the meaning of foreign languages.
The question presented is one of fact, and must be proved as any other fact is proved. The situation existing on this appeal requires that the judgment be reversed and a new trial ordered, at which the true translation of the constitution and by-laws can be established in a satisfactory manner.
The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.
HIRSCHBERG, P.J., WOODWARD, JENKS and RICH, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.