
    The People of the State of New York ex rel. Nathan Wang, Appellant, v. Lubliner United Brothers Association, Respondent.
    First Department,
    March 11, 1910.
    Mandamus—expulsion of member from benevolent association—sufficiency of petition—denial of allegations — alternative writ—trial by jury—constitutional law — due process of law—right to defend.
    
      It seems, that allegations of a petition for mandamus to compel the relator’s reinstatement as a member of a benevolent association stating that contrary to the by-laws he was denied the right to select counsel and the privilege of challenging members of the trial committee which expelled him, are in a sense legal conclusions, and it would be better to allege that he requested those privileges, and that the request was denied.
    
      But the rule that pleadings shall be liberally construed applies in mandamus, and the petition is not defective if it appear that the affirmative action of the committee at the trial was such as to render, the requests futile.
    Moreover, an allegation that he was denied an opportunity to speak upon the charges, and was directed to leave the room, sufficiently states that he was not afforded an opportunity to defend. . -
    The court will not consider the sufficiency of the charges upon which a member of a benevolent association was expelled if he was denied the right to be heard in his own defense.
    Where the allegations of a petition for mandamus to compel reinstatement to membership in a benevolent association are denied, -an issue of fact arises which entitles the relator to an alternative wr.it under which the questions may be submitted to a jury.
    Although oh a petition for a peremptory writ of mandamus the answering affidavits must be taken as true, it is not so where the petitioner also asks for an alternative writ.
    Membership in a benevolent association conferring rights of á pecuniary nature is á property right of which a member cannot be deprived without due process of law, which means a trial in substantial accordance with the constitution and by-laws, and an opportunity to be heard in his own defense.
    Appeal by the relator, Nathan Wang, from an order of the- . Supreme Court, made-at the blew York Special Term and entered in the office of the clerk of the county of blew York on the 14th day of December, 1909, denying the relator’s motion for a peremptory or alternative writ of mandamus to compel his reinstatement as a member of the respondent.
    
      Adolph Stern, for the appellant.
    
      Joseph L. Frieder \Alfred B. Jaworower with him on the brief]., for the respondent.
   Latjghlin, J.:

The application was made on an order to show cause based on an affidavit of the relator which in many respects is subject to the objection that conclusions of law instead of the facts are stated. It is, however, specifically charged that the respondent is a domestic corporation of the fraternal beneficial order; that in the month of September, 1909, the relator was a member thereof in good standing. and had been such during the past thirteen years; that the constitution and by-laws of the association provided, among other things so far as material to the decision of this appeal, that charges against a member may be made by a fellow-member in writing and that “ a duplicate charge must be read and accepted without debate,” and a committee of three must then be appointed by the president to prefer the charges, and if such committee finds .“ that there is some basis for the charge” the president must appoint “a committee of 7 to act on the charges;” that the committee shall send a copy of the charges- to both parties, and keep a record of its ■proceedings and make a report thereon to the society at its next meeting; that “in order to find a member guilty, at least five members of the 7 must be of the opinion that he is guilty of the. charges and must find him so,” and that “during such a proceeding the parties to the charge have a right to speak upon the question and after having spoken once upon the subject must leave the-meeting room,” arid that the accused as well as the accuser has a. ' right to reject four of the members of the trial, committee and in . that event the president must appoint four others,, and that“the-accused as well as the accuser have a right to select counsel before said committee.” It is further expressly stated in the affidavit that no committee of three was appointed and that instead of appointing a committee of three to investigate and prefer charges, a committee of ten was appointed, and that.by the direction of this committee a notice in writing was sent to the relator inclosing a copy of the charges filed against'him by a brother member and requesting him-to appear before the “ Charges Committee appointed by the President ” at a time and place specified “ to present your answer in defense of these charges; ” that he appeared before the committee thinking it was the investigating committee and was denied an opportunity and the right to speak upon the charges and was told to leave the' room, and that he was “ denied the right to select counsel and the privileges, of challenging jurors;” that he was subsequently requested to pay the sum of four dollars and ninety cents at the next meeting of the society to be held on the 18th day of September, 1909, and notified that in the event of his failure so to do he would be expelled, and.that he refused to pay the fine and was expelled.

The allegations that the relator was denied the right to select counsel and the privilege of challenging members of the trial committee are in a sense legal conclusions.. It -would have been better pleading to have stated that he requested to be given or accorded the privilege of exercising his right to select counsel or to present challenges and that his request was denied; but the liberal rule with respect to the construction of pleadings' applies here and in another sense it is clear that he could not be denied a right that he did not assert unless the necessary inference is that the affirmative action Of the committee was such as to render a request futile. Moreover it is clearly stated that he was denied an opportunity to speak upon the charges and was directed to leave the room and this, we think, is a sufficient statement of the fact that he was not afforded an opportunity or permitted to speak with respect to the charges. Assuming that he was, as he thus charges, denied the right to be heard in defense of the charges made against him, it is not material to consider the sufficiency of the charges for in no event could he be legally expelled without being allowed to be heard in his defense. The answering affidavits deny these allegations and thus á question of fact was presented which the Special Term' could hot determine' for it was the right of the relator, since he prayed for that relief,1 to have an alternative writ to the end that the material questions of fact might be determined by a jury. The learned counsel for the respondent contends that since it appears by the answering affidavits that the charges were properly prepared by a committee of three, and that a committee-of seven was thereupon duly appointed .to hear the charges, and that they were duly heard, and that the relator was afforded an Opportunity to challenge members of tlie trial committee and to. have counsel, the court was warranted in'refusing even an alternative writ and in denying the.application. The only authorities cited in support of that contention are decisions holding that for the purpose of determining whether the petitioner is entitled to a peremptory writ the answering affidavits must be taken as true, or that where the nature of the claim is such that in no event could' a peremptory writ of mandamus be issued the court is justified in withholding an alternative writ. Here the petitioner requested in the alternative that he he granted a peremptory or alternative writ of mandamus, and the. nature of his claim is; such that a peremptory writ may be granted' to reinstate him as a member Of this association for his membership carries with it certain 'rights of a pecuniary nature which are property rights of which lie could not be deprived without due process of law,- which in such case means that the proceedings affecting his rights must be had in substantial accordance with the provisions of the constitution and by-laws, and he must be afforded an opportunity to be heard in defense of any charge made against him.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion for an alternative writ granted, with ten dollars costs.

Glasee, McLaughlin, Scott and Dowling, JJ., concurred.

■ Order reversed, with ten dollars costs and disbursements, and motion for alternative writ granted, with ten dollars costs.  