
    McKANE v. ADAMS*
    
      N. Y. Supreme Court, Second District,
    
      Special Term ;
    
      October, 1888.
    1. Voluntary association; restoration to membership.] Wher.e a political organization, made up of several ward and town associations, disbands one of the town associations in accordance with its by-laws, and orders a new enrollment of the voters,- under which a new election is had, and one of the delegates elected at such new election is also one of the delegates from the disbanded association and is objectionable, and in hostility to the general body, such delegate may be refused admission to membership by a majority vote of the general body, although its by-laws require a two-thirds vote upon the question of refusing admission to membership of one claiming to be elected.
    * See also Gebhard v. New York Club, p. 248 of this vol. and Baum v. N. Y. Cotton Exch., p. 253; also see note in 15 Abb. N. C. 44; and reversal of the case of Loubat v. Le Boy, there reported, in 17 Id. 112.
    As to affiliated associations, see Davis v. Mayo, 10 Virginia L. J. 559; District Grand Lodge No. 5, Independent Order of B’nai B’rith v. Jedidjah Lodge No. 7, 65 lid. 236; s. c., 4 Eastern Rep. 657; Oliver d. Hopkins 144 Mass. 175; s. c., 10 Northeastern Rep. 776.
    
      3. Pleading; demurrer,'j In an action for such restoration, a demurrer to the complaint will be sustained, as it is a question to be determined between the town association and the general association, and not for the courts.
    Demurrer to a complaint.
    John Y. McKane sued the Democratic General Committee of Kings County, a voluntary unincorporated association, to be restored to his rights as a member of the defendant.
    The plaintiff was allowed to amend the name of the defendant, making John P. Adams, as president, etc., the defendant. (See opinion on motion to amend p. 88 of this volume).
    The complaint alleged in substance as follows: that the Kings County Democratic organization is and for several years last past has been an unincorporated political organization in the county of Kings, composed of a large membership in each and every ward in the city of Brooklyn, and in each town in said county ; that said organization, for the purpose of maintaining .unity of action in the Democratic party in said county, has a constitution and by-laws, which its members have adopted, and said organization also has a,constitution and rules of order by which the ward and town associations in said eoiinty are governed, adopted by the members thereof, and by virtue of the said constitutions, bylaws and rules of order (a copy of each of which is attached to the complaint and made a part thereof), each and all of the persons who have enrolled themselves, have obligated themselves to submit to and be controlled by the same, with equal rights in all things pertaining to party management, except representation in the general committee; that the defendant, J ohn P. Adams, is the president thereof [here follows various provisions of the constitution and by-laws of the county organization and of the constitution and rules of order of the ward and town associations]; that for thirty-five years this plaintiff has been a resident of the town of Gravesend, and that during all that tim'e.he has been and still is “a Democrat” and entitled to be enrolled" in the Democratic association of said town for the last five years, and for the last five years has been elected from said association a delegate to the general committee, and has been so-accepted ; that during all that time he has contributed largely to the maintenance of said organization by money, personal influence and services; that by means of contributions, collections, assessments and annual dues paid by the various members of said organization, including this plaintiff, the said general committee has accumulated considerable property and money in its treasury, amounting at the present time, as he is informed and believes, to the sum of four thousand dollars and upward, in which this plaintiff has interest in common with other members as a member thereof, by virtue of his election; that at a primary election of the Gravesend Democratic association on the second Monday of December last to elect members of the said general committee, the plaintiff was duly elected a delegate to represent said town association; that on'or about December 8, last, charges were preferred against said town association, and after investigation and trial said association was disbanded after said primary eléction, and a new enrollment of the voters of the town was ordered by said general committee; that said new enrollment took place under direction of those charged therewith by the said general committee; that the enrollment was accepted by said general committee at its next regular meeting, and a primary election was ordered to elect delegates from the new enrollment to represent said town association in the general committee; that at said primary the plaintiff was duly elected a delegate [the complaint sets forth specifically all the details of the primary election] ; that by virtue of said primary election the plaintiff became entitled to admission as a member of said general committee ; that at a meeting of said general committee thereafter held, and by a majority vote of a quorum present, the plaintiff was rejected for membership.
    The prayer was to the effect, that it be adjudged and decreed that the plaintiff was eligible as a member of said committee at the time of such election ; that he was duly elected and entitled to be recognized as such and entitled to all the benefits and advantages to flow therefrom, and that he be admitted ás such member; that the action of the general committee was unlawful and that it be set aside ; that the committee and its members be enjoined from keeping him out, and that he have possession and benefits of said office and the rights and privileges thereof, and such other judgment as the facts shall justify, and the costs.
    The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
    
      James Troy, for the' demurrer, contended,
    that the defendant was a voluntary association whose members, as such, were not burdened with duties or responsibilities, property or privilege, and were free to follow the dictates of their own judgment whenever they saw fit so to do.
    While not contrary to law the association had no existence which the law could recognize; and it was contrary to public policy that the power and authority of a court of justice should be extended to aid, maintain, regulate or interfere with such associations, so long as they refrained from violating the positive laws of the land.
    As the privileges of membership in a voluntary unincorporated association were not conferred by the sovereign power, but were merely created by the organization itself, courts of law could not compel the admission of an applicant for membership, -or interfere to restore a member who had been deprived for non-compliance with the conditions on which membership was-made to depend.
    
      Abrum H. Dailey, opposed,
    contended that the plaintiff had an interest in the funds of the general committee, amounting to about $4,000. Tie had been a member for a good many years, and by the payment of dues had helped to create the fund. If the committee were to disband he •could maintain an action for the division of its property. All the obligations required for membership had been met by the plaintiff, and he was therefore entitled to the seat to which he was elected by the authority created by the general committee itself, namely, the association of the town of Gravesend.
    In excluding the plaintiff, the committee had violated its own by-laws, which provided that any expulsion or rejection of a member should be by a two-thirds vote of the members, whereas the plaintiff was rejected by a majority vote only. He was a legally enrolled member of the town association. The enrollment had been accepted by the general committee which had ordered it, had supervised it through its agents, knew that the plaintiff was enrolled and approved the enrollment. The plaintiff was, therefore, •eligible for election to the central body and, when elected, he was entitled to his seat.
   Barnard, P. J.

No actionable fact is averred in the •complaint. The general committee had power to disband any town association which acted in hostility to it. .Under this provision and according to the forms provided by the •constitution of the general committee, it disbanded Graves-end and ordered a new enrollment of voters. So far no ■complaint can be made.

Under the new enrollment an election was had, and at this election the plaintiff was elected a delegate to the committee. The defendant association refused to receive him. Having disbanded the town for hostility to the purposes of the organization, and the new election having resulted in the return of the objectionable person, it was competent for •the committee, by a majority vote, to refuse to receive the •same person who had been ousted by the regular proceedings for the disbandment of his town. To go through another process of disbandment, another enrollment and election and with the same result, would be without any useful purpose. The object sought to be obtained was the organization of the town by persons in harmony with the Democratic party, and if a town failed to elect such a person, the committee could lawfully refuse to accept the delegate proposed to be sent by the town as a delegate.

The rights of the plaintiff are but such as will give him an action fbr restoration, even if he was improperly refused1 admission to the general committee.

A political oi’ganization must have as members those-who favor' the common cause. If an enemy be elected to it as a delegate, the general body, may act without the observance of the strict forms governing such cases in courts of justice, and refuse to receive him. The courts cannot aid him. The question must be determined between the town and the committee.

There must be judgment for the defendant on the demurrer, with costs.

J ndgment accordingly. .  