
    Newton E. Whiteside et al., App'lts, v. The Noyac Cottage Association, Resp't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1893.)
    
    Clubs—Action to enjoin forfeiture, when premature.
    Where a member of a club or association is given an opportunity for a hearing, by its board of managers before final action, an action to enjoin such action forfeiting the member’s membership cannot be maintained prior to the time set for such hearing, as he has not exhausted his remedies within such association or club.
    Appeal from judgment dismissing the complaint and vacating a preliminary injunction.
    
      Eugene D. Hawkins, for app'lts; William C. Reddy, for resp't.
   Per Curiam.

This action was brought to remove a cloud upon the title of the plaintiffs to certain lots owned by them as members of the defendant, claimed to have been caused by the lien of an assessment levied upon them under the by-laws of the defendant, and to enjoin defendant from forfeiting their rights as members by reason of their non-payment of such assessment. Upon the trial it was shown that the respondent, as a club, was incorporated under chapter 267 of the Laws of 1875 and its amendments, for social and recreative purposes, and that after incorporation it purchased a tract of about forty acres of land on Little Peconic bay, L. I., and proceeded to improve it, according to the terms of its prospectus, by laying it out in lots, groves, lawn tennis grounds, lakes and ponds, and erecting and maintaining there a club and clubhouse.

The plaintiffs purchased' some of these lots of land, received deeds therefor, and thereby became members of the defendant. By the express terms of the deeds, the plaintiffs were to have and to hold the premises “ subject to assessments by the managers of the said Noyac Cottage Association, to enable the said association, party of the first part, to meet deficiencies which may arise in defraying its current expenses for maintaining its public grounds, clubhouse, piers, beaches, streets or avenues, and other property, and in the payment of town, county and state taxes.” By the by-laws of the defendant, provision is made for the manner in which assessments shall be levied, and the mode of enforcement; such by-laws, in effect, providing that the board of managers may levy assessments on each member of the association who owns a lot, of such sum as represents his share of. the tax imposed by public authority for that year, and, in addition, “ may also, from ■ time to time, make assessments for other purposes upon the members of the association who are owners of lots as they shall deem necessary; but the amount of such assessments shall not exceed ten per cent of the value of his holding.” ,

Under date of June 19, 1891, the board of managers notified the plaintiffs and the other members of the association that, pursuant to a resolution adopted, an assessment of ten per cent, on the purchase price of lots was levied on the members, and accompanying such notice was an explanation, in which the attention of members was called to the fact “ that during our three years existence no assessments or dues have been exacted, but all taxes have been paid, and many improvements made on the grounds, all being paid by the treasurer out of personal funds.” The claim of plaintiffs and of others who take their position is that such assessment was illegal, exceeding the powers vested in the board of management, in that it was levied to pay, not alone for current expenses, but for permanent improvements, and that, with respect to the latter, the board of managers had no power to assess for such purposes. Having refused to pay such assessments, and ninety days having elapsed, the managers forwarded to plaintiffs a notice, containing a preamble and resolution adopted by them, - which recited the foregoing facts, and in the resolution stated:

“ Resolved, That pursuant to § 5, chapter 6, of the by-laws of this association, all the rights and membership of said Newton E. Whiteside, and all his right, title, and interest in the property of ■ this association, are hereby declared to cease and determine, and ■ revert to this association, unless said Newton E. Whiteside shall show sufficient cause to the contrary before this board, at the office of the secretary, No. 147 Nassau street, on the 28th day of December, 1891, at three P. M. o’clock on said day, at which time an opportunity shall be given him to be heard in the matter.”

Feeling aggrieved by such action of the board of managers, and without waiting for the time fixed in the notice for the hearing, the plaintiffs brought this action for the relief as stated. Applying the principles laid down in the case of Thomas v. Union, 121 N. Y., 50; 30 St. Rep., 563, and cases cited, we think that the disposition made by the learned trial judge was right. The appellants have not availed themselves of their right of hearing and defense within the corporation, i. e., before the managers, pursuant to notice, and the respondent has not deprived them of their rights of membership or property rights, nor is it to be assumed that it would illegally do so. Upon such facts appearing, no such case was presented as would justify the intervention of a court of equity, and the dismissal of the complaint and the vaeating of the preliminary injunction were, therefore, proper. For these reasons we think the judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.  