Fritz v. Muck , 62 How. Pr. 69 ( 1881 )

Merwin, J.

— The defendant Muck is the president of an incorporated association, consisting of about, ninety members, formed for the purpose, among other things, of furnishing aid to its members in sickness, and having a fend arising from the payment of initiation fees, fines and assessments.

The plaintiff became a member in 1869, and continued to be such till the 28th of July, 1878, when the association, at a regular meeting, passed a resolution expelling him on account of being falsely sick. The plaintiff had, from about May first to July tenth, received the weekly benefit allowed to the sick. This adtion is brought on the equitable side of the court, and this plaintiff in his complaint asks that he be restored to his rights as a member or associate of said association, and that the said association account to him for the amount of weekly stipend or allowances which have accrued since the 10th i of July, 1878, and be directed to pay the same to this plaintiff, and that he may have such other and further relief as shall be just and equitable.

The first question to be disposed of is whether an action of this kind can be brought against the president of the association under chapter 258 of the Laws of 1849, as amended by chapter 455 of 1851. In Roobe agt. Russell (2 Lans., 244, General Term, First District, 1869), this question was discussed as well as the merits of the case, but on which ground the case was decided does not appear. In Olery agt. Brown, President (51 How., 92), it was held at special term that the action could be properly brought in that form.

The fact that plaintiff is himself one of the members does not prevent suit being brought in that form, if in other respects it is proper (Westcott agt. Fargo, 61 N. Y., 542 ; Sallsman agt. Shults, 14 Hun, 256).

The object of the plaintiff in this action is to place himself in a position where he can reach the joint property. In that view the action is in regard to the joint property and rights of the association. It is within the purpose designed to be accomplished by the acts of 1849 and 1851, and that was, that where an association of the character there specified was liable to be sued, it should not be necessary to make all the members parties. The president, as such, should represent the whole. The expression “ joint rights,” in the statute, should receive a liberal interpretation in order to accomplish the remedy designed by the statute. The case of White agt. Brownell (2 Daly, 356), was similar to the present one, but the point now under consideration was not raised.

In my opinion, the present action, so far as the form in which the defendant is sued, is properly brought.

Coming to the merits of the case, the question is whether the propriety of the expulsion of plaintiff can be reviewed here, and if so, whether it was proper. Cases are cited showing that the proper remedy is by mandamus where parties seek restoration to the membership of a corporation (People agt. N. Y. Benevolent Society, 3 Hun, 361, and oases cited). This does not, I think, apply to an unincorporated association (see White agt. Brownell, 2 Daly, 329, 358). In the latter case, if the party has any remedy, it is by suit. v The defendant’s association, in this case, had adopted a by-law authorizing expulsion for the cause alleged against the plaintiff. The plaintiff was bound by this by-law. It was passed in 1874, while he was a member, and he was, presumably on the evidence, present at its passage. The association, therefore, actfed within its jurisdiction when it expelled the plaintiff. Ho notice was given to the plaintiff of the charge; no opportunity given to him to be heard. The rules of the association dia not provide for any notice to be given. In this respect they were not reasonable. The charge against plaintiff involved not only expulsion, but disgrace. He was not present at the meeting and it was one at which he was not obliged to attend. Had he been expelled after notice and in accordance with the rules, this court would not have interfered (2 Daly, 329 ; 2 Whart., 309 ; 52 Penn., 125). As the case stands he is entitled to relief in this regard.

But the defendant’s counsel suggests that the evidence shows that plaintiff was guilty of the charge, and therefore relief should not be given by reason of want of notice. This calls on the court to enforce the rules of the organization and try the party -in a manner not provided for by them. This position is not, in my opinion, tenable.

The expulsion then being invalid, what about the weekly payments whitii were then suspended; can the right to recover them be passed upon here ? Those were payable in case of' sickness or inability to work. The association, by its rules, provided a m^ans of ascertaining the circumstances under which, or by reason of which, the party should be entitled. The degree of - sickness or inability was, in the very nature of the case, an open and indefinite matter. How much departure from the standard of full health would be necessary, or what the standard should be, or what would constitute inability to labor, would, in many cases, be very difficult to determine by any legal rules.

The propriety, therefore, if not necessity, of leaving this matter to be determined by the society or its committee, according to its own rules, assented to by all its members is, to my mind, very apparent. And as long as the society and its committee acted in good faith, without fraud, their determination should be deemed conclusive. .

Fraud is not in terms alleged in the complaint. Assuming that it is inferentiaUy, the question is whether it is established by the evidence. In my opinion it is not. The case of plaintiff was a peculiar one, physicians disagreed about it; it was under consideration for several weeks before the final action of the society. As the case then stood, I don’t think fraud or bad faith can be fairly charged against the society or its committee. Their determination, therefore, that the plaintiff was not then in a situation to be entitled to the weekly relief is conclusive. Ho action has since been taken by them on the subject, or any new application made by plaintiff. If, on proper application, they should refuse Lo act or act in bad faith, what remedy the plaintiff would have is not necessary to here determine.

My conclusion is that the plaintiff is entitled to a judgment declaring the said expulsion invalid and restoring him to „all his rights as a member of said association. He should also recover the costs of this action.