
    BURNS v. BRICKLAYERS’ UNION NO. 1 OF BROOKLYN.
    
      City Court of Brooklyn, General Term ;
    
    
      April, 1891.
    1. Benevolent Societies ; labor.union fining member for violation of bylaw^. The by-laws of the defendant, an incorporated labor union, prohibited its members from working with non-union workmen, and also provided that employers must pay the wages of their employees every Saturday. ■ The plaintiff, a member of the defendant, being fined by the defendant for violations of both of these by-laws, sought to justify on the ground that a “ strike ” had been illegally declared against the job on which he was employed, and in which the violations took place, and that because of such “ illegal strike,” he was justified in working.—Held, that whether or not there had been a properly declared “ strike ” was immaterial, as the plaintiff was not fined for working upon a job against which a “ strike ” had been illegally declared, but was fined for violating the by-laws by working with non-union men and for an employer who failed to pay his men their wages weekly.
    2, Same; member exhausting remedies before suit], Where the bylaws of a labor union provide for the infliction of punishment upon a member by and through its executive committee, and then gives the member the right of an appeal from the executive committee to the union itself, an action in equity by such member to set aside the fines as illegal cannot be maintained until he first exhausts the remedy by appeal.
    3. Same; enforcement of by-laws], A by-law of such an organization which prohibits its members from working with a fellow-member who is in arrears for over six months, may be enforced by depriving the delinquent member of his pass-card which would show him to be in good standing and entitled to work with union-men.
    Appeal from a judgment of the Special Term of the city court of Brooklyn dismissing the complaint upon the merits.
    This was an action brought by John Burns against the Bricklayers’ Benevolent and Protective Union No. 1 of the city of Brooklyn, to set aside certain fines imposed upon him by the defendant for alleged violations of its by-laws, and for a restoration to all his rights and privileges as a member of the defendant, and for damages.
    The pleadings in this case and the findings of the court below are fully set forth in the report of the case at special term in 24 Abb. N. C. 150.
    Judgment was rendered by the special term in favor of the defendant dismissing the plaintiff’s complaint upon the merits, and from that judgment the plaintiff now appealed to the general term.
    
      
      Charles F. Brandt, for the appellant.
    I. This is a proper form of action upon the facts pleaded.
    II. A strike took place, and it was illegal.
    III. The by-laws are illegal and unreasonable (Fritz v. Muck, 62 How. Pr. 69 ; People v. St. Franciscus Benev. Society, 24 How. Pr. 216 ; Wachtel v. Widows & Orphans Society, 84 N. Y. 28).
    IV. As to why plaintiff did not exhaust his remedies within the corporation (Angell & Ames on Corp. [11 ed.] § 341 ; State v. Merchants’ Exchange, 2 Mo. App. 96; 15 Abb. N. C. 47 note ; Gosling v. Veley, 12 Q. B. 347).
    V. The infliction of the fines falls with the by-laws. (Angell & Ames on Corp. [11 ed.] § 358 ; Dodwell v. Oxford, 2 Vent. 34; Guilford v. Clarke, 2 Id. 248; Oxford v. Wildgoose, 2 Lev. 293 ; Stuyvesant v. N. Y., 7 Cow. 585 ; State v. N. Y., 3 Duer, 119; Wood v. Searl, J. Bridg. 141; 3 Leon. 8; Mobile v. Juille, 3 Ala. 137; Willcock Mun. Corp. 154, § 368).
    VII. The general mode of enforcing the penalty of a by-law is by an action of debt or assumpsit (Angell & Ames on Corp. § 363, subd. 2 ; Barber Surgeons v. Pelson, 2 Lev. 252; Tidd Prac. 3, 4; Lee v. Wallis, 1 Kenyon, 295 ; Wooly v. Idle, 4 Burr. 1952; Feltmakers v. Davis, 1 Bos. & P. 98; Adley v. Reeves, 2 M. & S. 60; Mayor of Exeter v. Tumlet, 2 Wils. g5).
    
      Thomas E. Pearsall for the respondent.
    I. In working for an employer who refused to pay his workmen, among them plaintiff himself, their wages weekly, the plaintiff was guilty of a violation of the defendant’s by-laws \yhich prohibit its members from working under such conditions. And in working with non-union men, which was also a violation of the defendant’s by-laws, the plaintiff was subject to punishment at the hands of the defendant. The findings of the court below that plaintiff was guilty of both violations, are conclusive if there was sufficient evidence to sustain the findings. The case fails to state that it contains all the evidence taken upon the trial. In the absence of such statement, the court will assume that there was sufficient evidence to sustain the judgment (Simonson v. Krollpfeiffer, 6 N. Y. Supp. 115 ; Harkness v. N. Y. Elev. R. R. Co., 55 Super. Ct. [J. & S.] 532).
    II. The plaintiff has been a member of the defendant for upwards of nine years. During all of that time these by-laws were in full force and effect. He conceded in his testimony that he knew of these by-laws, and knew all about them. The punishment prescribed for his offences were left to the decision and discretion of the executive committee.
    The by-laws were reasonable and proper. Legislative sanction of such by-laws has been given by the enactment of the law making it compulsory upon corporate employers to pay their employees' wages weekly (Law of 1890, chap. 388). Moreover the plaintiff subscribed to the by-laws and they were therefore binding upon him (Master Stevedores’ Association v. Walsh, 2 Daly, 13 ; People ex rel Corrigan v. Young Mens’ Father Matthew Soc., 65 Barb. 395). Even an unreasonable by-law becomes a proper and binding one when assented to by the party (Skelly v. Private Coachmens’ Soc., 13 Daly, 2).
    III. At common law a member of a corporation could be legally disfranchised or expelled from his membership for offences against his duty to the corporation as a member of it (People v. Medical Society, 24 Barb. 578 ; Angell & A. on Corp. [4 ed.] § 411 ; Commonwealth v. St. Patrick’s Soc’y, 2 Binn. 448). When the plaintiff became a member of the defendant and subscribed to its by-laws, he agreed as a condition of his being associated with the defendant that he would, by his practice, aid in the objects and purposes of the defendant, which were to obtain fair remuneration for the labor of its members. These objects could not be maintained by violations of laws which imperilled the very existence of the defendant. If the acts of the plaintiff were supported by the courts or even condoned it would place the defendant in the position of embracing among its members one who acted directly at variance with its avowed purposes, thus evincing tliat it had no such object in view as its charter declared (People ex rel. Thatcher v. N. Y. Commercial Assoc., 18 Abb. Pr. 271). If the plaintiff could violate the rules and by-laws lawfully made by the defendant, and still insist upon his membership, the object for which the corporation was formed would be at once defeated (People ex rel. Pinckney v. N. Y. Fire Underwriters, 7 Hun, 248).
    IV. No question can arise in this case as to whether or not there was a “ strike ” upon the job on which the plaintiff was employed. The formalities necessary to be observed in order that there should be a proper “ strike ” were as well known to the plaintiff as to any member of the defendant. The defendant’s answer in this case expressly admits that no permission from proper authorities to “ strike ” was obtained, and alleges that there was no “ strike,” that none was ordered. Nor was there any proof upon the trial of a “ strike ” and whether plaintiff was “ knocked off ” as he states, or was informed that he “ was violating the laws of the union,” as stated by the witnesses for the defendant, he offered no justification whatever for his conduct in openly and boastingly violating laws assented to by him and made for the protection of himself and his fellow members. He was not fined for returning to work upon a job against which a “ strike ” had been illegally declared, but the fines were imposed for working with non-union men for an employer who did not pay his employees their wages weekly.
    
      V. The plaintiff had sufficient notice of the charges against him. His knowledge of his violations was notice in itself. Knowing, as he admitted, that he had violated the laws of his union, it was not necessary that he should receive notice of the particular charge. In the absence of a provision in the by-laws as to notice, the communication to the plaintiff, orally, of the charges against him and when they would be heard was sufficient information of the purpose to try him and took the case out of the rule making it unlawful to condemn without giving an opportunity to be heard (Wachtel v. Widows, etc. Soc’y, 84 N. Y. 28, 31; Vatable v. N. Y., Lake Erie, etc. R. R. Co., 96 Id. 49). And in appearing at the meeting and answering to the charges and denying them, the plaintiff waived any right to written notice if one was requisite under the law (Angell & A. on Corp. 2 ed. 355 ; Commonwealth v. Penn. Ben. Inst., 2 S. & Rawle, 141 ; People ex rel. Pinckney v. Fire Underwriters, 7 Hun, 248).
    VI. The plaintiff cannot maintain this action until he first exhausts all remedies which the defendant itself provides for the redress of his alleged grievances. These remedies it is conceded existed and were ample to afford him relief. He should have first appealed to the union itself from the infliction of the fine by the executive committee, and failing there he should have appealed to the International Union. Both appeals were prescribed in the by-laws. It is well settled that courts will not review the merits of the expulsion of a member of an organization, association or corporation which furnishes redress itself to the member ; that such redress must first be sought within the body itself (Poultney v. Bachman, 31 Hun, 49; Lafond v. Deems, 81 N. Y. 507; White v. Brownell, 4 Abb. Pr. 162; Gebhard v. N. Y. Cotton Exchange, 21 Abb. N. C. 251; Karcher v. Supreme Lodge Knights of Honor, 30 Alb. L. J. 437; Harrington v. Working Mens’ Benev. Soc’y, 27 Id. 
      438 ; Osceola Tribe of Red Men v. Schmidt, 57 Maryland ; Thomas v. Musical Mut. Union, 121 N. Y. 45, 55 ; Hurst v. N. Y. Produce Exch., 100 Id. 605). The only-reason given by the plaintiff for not availing himself of the remedies offered him by the defendant was that “ it was no use.”
    This excuse was insufficient, for he could not, without specific proof, assail the impartiality of the judges, to whom he agreed to submit his rights and grievances when he joined the defendant. It was this tribunal he contracted to submit to when he subscribed the by-laws (Gebhard v. New York Club, 21 Abb. N. C. 251).
   Clement, C. J.

The plaintiff brought this action, and asked judgment in his favor. I. That a “ strike,” claimed to have been ordered by the defendant on or about January 2, 1889, be declared irregular and void: II. That four fines amounting to seventy-five dollars imposed on plaintiff be declared null and void : III. That the plaintiff be reinstated in defendant, and to his rights and privileges as a union man, and that he be given a pass-card to show that he is a member of defendant in good standing. The learned Judge at special term found that a “ strike ” had not been ordered by the defendant, that the fines complained of were legally imposed, and that plaintiff was properly deprived of his pass-card, and rendered judgment in favor of the defendant.

We think that the question whether or not a “ strike ” was ordered by the defendant is entirely immaterial, for the reason that the plaintiff was fined because he worked for an employer who did not pay his men weekly, and because he worked with non-union men, and for no other reasons. By section 9 of the Working Code of the defendant (folio 535) it was provided that the bricklayers should be paid every Saturday and by section 13 (folio 556) it was further provided that no member should work on the same job with a non-union man. It is conceded that the plaintiff worked for several weeks for one Thomas H. Robbins, who did not pay his men on every Saturday, and it is also conceded that Mr. Robbins employed during the same period, non-union bricklayers. The plaintiff clearly violated the rules of the union, and therefore, whether a strike was ordered against Mr. Robbins properly, or not, need not be considered in this case.

The next question is as to the relief asked, that the fines for seventy-five dollars be declared void. We are not called upon to decide whether the fines were lawfully imposed, for the reason that the plaintiff has not exhausted his remedy in the union. The executive committee may not have acted legally in fining the plaintiff without a trial, but their action was valid until reversed by the act of the union, and the plaintiff as soon as he learned that the fines stood against him, should have appealed, and cannot maintain an action in equity until he has exhausted his remedy in the society. This point seems well settled by a number of authorities (Poultney v. Bachman, 31 Hun, 49; Lafond v. Deems, 81 N. Y. 507; Gebhard v. New York Club, 21 Abb. N. C. 248).

The plaintiff was fined on four occasions, as follows— January 7, 1889, ten dollars, January 14, twenty-five dollars, January 28, twenty-five dollars, February 11,1889, fifteen dollars. He paid twenty-five dollars, and on July 29, was in default over six months for the fine of January 28. By Article X of the by-laws (folio 550) any member in arrears for fines or dues over six months was prohibited from working until the same were paid. The plaintiff was deprived of his card on July 29, 1889, (folio 600) and at that time was in arrears over six months. The card was properly taken away from him if the fines were valid.

We have examined all the questions raised- by the appellant and conclude that, for the reasons above .stated, the appeal is not well taken.

Judgment affirmed with costs.

Van Wycic, J., concurred.  