Hewett v. Bronson. it were beneficial and involved personal attention and the loss of time. In the absence of an express agreement, the law implies an obligation to pay what a service is reasonably worth, when from the nature of it, or the circumstances, it is to be inferred that it was undertaken with that understanding upon both sides. Chief Justice Marshall, when speaking of implied contracts and the large mass of human transactions that depend upon them, remarks that "in such cases parties are supposed to have made such stipulations which as honest, just and fair men they ought to have made." (Ogden v. Saunders, 12 Wheat. 341.) But while the law will thus infer the existence of an obligation to pay a just and reasonable compensation for a service, it distinguishes between that gratuitous service which men constantly render to one another, and one where it is obvious that the inducement to render it was the pecuniary compensation or reward to be received, and where the other party has no right to assume that it is to be done for any other consideration. In Bartholomew v. Jackson (20 Johns. 28), the plaintiff brought the action to recover for his services in removing the defendant's property to save it from being destroyed by fire, the defendant not being present at the time of the conflagration, and it was held that the action could not be maintained. 'If," said Platt, J., "a man humanely bestows his labor and even risks his life, in voluntarily aiding to preserve his neighbor's house from destruction by fire, the law considers the service rendered as gratuitous, and it therefore forms no ground of action." In Dunbar v. Williams (10 Johns. 249), it was held that a physician could not maintain an action for medical services and attendance upon a slave rendered without the knowledge or request of the master, in a case not demanding instant and immediate assistance; but it was conceded that if the service had been an act of necessity, which did not admit of a previous application to the master, the law would raise an implied assumpsit; the master being legally bound to make the requi Hewett v. Bronson. site provision for the slave. In Bowen v. Bowen (2 Bradf. 336), it was held that a contract would not be implied on the part of the deceased to pay his brother for serving for five years in the deceased's store as a clerk; the deceased having clothed and boarded the claimant, there being nothing to show that the services were performed by the claimant expecting to be paid for them, or that the deceased so understood it, or had reason to believe that he was to be charged for the services. And see also, to the same general effect, Everts v. Adams (12 Johns. 352); Moore v. Moore (21 How. Pr. 219-224); People v. Supervisors of Kings (23 Id. 89); Raynor v. Robinson (36 Barb. 128); Green v. Roberts (47 Id. 521). These cases sufficiently illustrate the rule that an obligation will not be implied to remunerate a party for his services, unless the circumstances are such as to show either that there must have been a mutual understanding to that effect, or if rendered without the party's knowledge, that the service was an act of necessity, for which he was legally bound to provide, or where it may be assumed that, if he had known of the exigency, he would have required such a service to have been performed, with the understanding that he was to pay for it. An analogous distinction exists where services are rendered to the dead. An obligation is implied on the part of executors or administrators, or as they are called in the law, the personal representatives of the deceased, to pay his funeral expenses. In wills it is very common for a testator, before he makes any devise or bequest, to provide for the payment of his just debts and funeral expenses; but where he does not do it, and in all cases of intestacy, an obligation on the part of the personal representatives will be implied to pay the funeral expenses out of the assets, if there be assets. It will be implied because the interment of the deceased is an act of necessity, and it will be inferred, where nothing appears to the contrary, that he wished to be buried in accordance with the customs and usages of society, and meant that the reasonable cost and charges thereof should be defrayed out of his estate. Where there is an executor, as he has the right to direct in what way the funeral is to be conducted, and who is to attend to it, and Marks v. The Congregation Daruch Amuno. provide what is necessary, the executor must, if accessible, be consulted, and in cases of intestacy, as the interment generally takes place before an administrator is or can be appointed, the administrator takes the assets subject to the payment of the funeral expenses, as a debt or charge necessarily created (see the cases cited in Rappelyea v. Russell, 1 Daly, 218). The funeral expenses embrace the outlay or charge incurred in procuring what is necessary for the interment, and the compensation of the person, generally denominated an undertaker, who attends to all the details of the funeral for hire or reward. Beyond this, all such services are usually and from their nature gratuitous, and such was the character of those for which the plaintiff seeks to recover. The report of the referee and the judgment upon it should therefore be affirmed. Judgment affirmed. HERMAN MARKS V. THE CONGREGATION DARUCH AMUNO. Two members of a religious congregation sent a letter to the trustees, stating that they resigned their membership until a new reader should be elected: Held, that this was not a resignation, but an attempt to create a suspension of their membership until the happening of a certain event, when they should have the right to resume it, and that as there was no provision in the by-laws authoriz ing such a suspension, that they continued members, and were liable under the by-laws to the payment of dues. APPEAL by defendants from the Eighth Judicial District Court. The action was brought against the defendants, who are a religious corporation, to recover the amount of certain scrip issued by the corporation to the plaintiff and his brother, which was then due and payable. The defendants set up by way of counter-claim $121 22 for dues owing by the plaintiff and his brother as members of the congregation under the by-laws. The plaintiff claimed that he and his brother were not, during Marks v. The Congregation Daruch Amuno. the period for which the dues were charged, members of the congregation, and showed that on the 24th of August, 1868, he and his brother sent the following letter to defendants: "We, the undersigned, hereby resign our membership in the Congregation 'Daruch Amuno' until another reader of the said congregation is elected. "New York, Aug. 24th, 1868. "(Signed,) "H. MARKS, "M. MARKS." The congregation, at a stated meeting of the Board of resignation, and notified Plaintiff and his brother Trustees, refused to accept this plaintiff and his brother of the fact. attended a meeting of the congregation, as members, after having forwarded this letter; paid their dues for the quarter beginning September, 1868, and some time between the last week in September and the first week in October, 1868, they voted for a reader of the congregation. According to the by-laws, a member in arrears could not vote, and the congregation would not permit plaintiff and his brother to vote until they had paid their dues. The defendants claimed that plaintiff and his brother were still members of the congregation, and at the commencement of the action they were indebted to the defendants in the amount stated for their dues. It further appeared that notices of the various meetings held by the congregation. were regularly sent by the defendant to the plaintiff and his brother, up to the time of commencing this action. The justice rejected the counter-claim, and gave judgment in favor of the plaintiff for the amount of the scrip. A. L. Sanger, for appellants. The plaintiff, at the time of commencing this action, was still a member of the congregation. 1. The alleged resignation is neither certain nor absolute. It must be absolute (Lewis v. Oliver, 4 Abb. Pr. 121, 124.) It is a conditional, temporary withdrawal, and the condition Marks v. The Congregation Daruch Amuno. seems to have been fulfilled between the last week in September and the first week in October, 1868. 2. There must be an actual resignation of a member and its acceptance by the congregation (State v. Ancker, 2 Rich. S. C. Law R. 245, 276; King v. Tidderley, 1 Siderf. 14; People ex rel. Hanrahan v. The Metropolitan Board of Police, 26 N. Y. 327, et seq.; 1 Black. Com. 484 [Sharswood and notes]; 4 Devereux N. C. 1; Grant on Corporations, 225, 267, 268; Wilcox on Corporations, 238, §§ 609, 611, 612; 26 N. Y. 329.) 3. Resignation rests upon agreement, and there must be some act on the part of the congregation to complete the resignation. It is necessary that they manifest in some way their acceptance of the offer to resign. (People ex rel. Hanrahan v. Metropolitan Board of Police, 26 N. Y. 328; see authorities cited in foregoing section; Angell and Ames on Corporations, § 433.) The right to accept a resignation is a power incident to every corporation (Rex v. Leve, 2 Ld. Raym. 1304; Jenning's Case, 1 Ld. Raym. 563). 3a. The resignation to be effective must be accepted (31 N. Y. 107; Van Ordsall v. Harris, 3 Hill, 247; Lewis v. Oliver, 4 Abb. Pr. 121). L. Levy, for respondents. J. F. DALY, J.—I think the judgment should be reversed, on the ground that the justice should have allowed the counterclaim of the congregation against the plaintiffs for dues, and set it off against his claim on the two notes. The obligation of the plaintiff, under the by-laws, to pay dues was sworn to by the witness Oettinger, and no objection was made that the by-laws were not produced; there was no resignation from the congregation by the plaintiff. The paper he sent as a resignation was intended evidently to be a sort of suspension of membership until the election of a new "reader." No authority in the by-laws is shown for such a suspension; under that paper the plaintiff and his brother evidently meant to reassume their rights as members upon the happening of the |