
    Sydney Leider, Appellant, v. Beth Israel Hospital Association, Respondent.
    Argued February 19, 1962;
    decided April 5, 1962.
    
      
      Paul O’Dwyer, Howard N. Meyer and Francis X. Murtagh for appellant.
    I. A binding agreement resulted when plaintiff accepted its offer of appointment pursuant to the terms of defendant’s offer set forth in the document defendant handed to him. (Hotchkiss v. National City Bank, 200 F. 287, 201 F. 664, 231 U. S. 50.) II. Defendant, having availed itself of the benefits of full performance on the part of Dr. Leider, cannot at this time repudiate or deny him its promised reward. (Rubin v. Dairymen’s League Co-op. Assn., 284 N. Y. 32; Grossman v. Schenker, 206 N. Y. 466; Willetts v. Sun Mut. Ins. Co., 45 N. Y. 45; Chard v. Ryan-Parker Constr. Co., 182 App. Div. 455; Miller v. McKenzie, 95 N. Y. 575; Van Campen v. Olean Gen. Hosp., 210 App. Div. 204, 239 N. Y. 615.) III. There is no basis in the facts or the law for summary judgment in favor of defendant. The undisputed facts dictate judgment in favor of plaintiff. (Matter of Marburg v. Cole, 286 N. Y. 202; Matter of Hecht v. Monaghan, 307 N. Y. 461; Matter of Wignall v. Fletcher, 303 N. Y. 435; Matter of Perpente v. Moss, 293 N. Y. 325; Matter of Fink v. Cole, 286 App. Div. 73; Findlay v. Board of Supervisors, 72 Ariz. 58; Bryant v. City of Lakeland, 158 Fla. 151; Jolmson 
      v. City of Ripon, 259 Wis. 84; Dixon v. Alabama State Bd. of Educ., 294 F. 2d 150; Matter of Barry v. O’Connell, 303 N. Y. 46; Matter of Alpert v. Board of Governors of City Hosp., 286 App. Div. 542.)
    
      Robert Zicklin, Irving D. Liphowitz and I. Robert Harris for respondent.
    I. In the ease of private institutions, in the absence of any contractual relationship or agreement to the contrary, the exclusion of a physician from staff privileges rests entirely in the discretion of the managing authorities. (Matter of Trapasso Oldsmobile [Italian Soc. of M. S. Cristoforo Colombo], 4 N Y 2d 133; Van Campen v. Olean Gen. Hosp., 210 App. Div. 204, 239 N. Y. 615; Matter of Alpert v. Board of Governors of City Hosp., 286 App. Div. 542; Johnson v. City of Ripon, 259 Wis. 84.) II. Assuming, arguendo, that defendant’s constitution and the by-laws of its medical board constituted a contract between the parties, it was either a contract at will and duly terminated by defendant, or a contract not to be completed before- the end of plaintiff’s lifetime and thus void under the Statute of Frauds. (Tyler v. Windels, 186 App. Div. 698, 227 N. Y. 589; Matter of Douglas v. Irving Trust Co., 169 Misc. 716, 256 App. Div. 1070.) III. Assuming, arguendo, that defendant’s board of trustees had approved plaintiff’s alleged contract, such contract would nevertheless be void, for the board of trustees of defendant, a membership corporation, does not have the power to bind defendant to such a contract. (Clifford v. Firemen’s Mut. Benefit Assn, of City of N. Y., 232 App. Div. 260, 259 N. Y. 547; Heaman v. Rowell Co., 261 N. Y. 229; Greaves v. American Inst, for Scientific Research, 114 Misc. 413.)
   Per Curiam.

Consideration of the papers before us leaves no doubt as to the correctness of the decision, rendered below, granting summary judgment to the defendant dismissing the complaint and, in view of the comprehensive opinion at Special Term, we may be very brief.

The defendant hospital’s constitution and the by-laws of its medical board, when road in context, indisputably establish that the plaintiff, a surgeon, has no vested right to the use of the hospital’s facilities for the care and treatment of his private patients. More specifically, his successive annual appointments effected no contractual relationship with the defendant which prevented its board of trustees from terminating his membership on its medical staff. His exclusion from the staff and the “ off-service ” privileges, incident to staff membership, including the privileges to care for private patients in the hospital, rested entirely in the discretion of the board of trustees. As the court at Special Term aptly noted, the by-law provision granting such “ off-service ” privileges to doctors “ of the Hospital Staff ” “ cannot derogate from the right of the board of trustees to make annual appointments only, and * * * can refer only to those physicians and surgeons whom the board * " * determines annually to reappoint to the hospital’s medical staff ‘ off service ’ after they have reached the age limits ’ ’ provided for by the hospital’s constitution. Consequently, the denial to the plaintiff of future courtesy privileges following the termination of his annual employment constituted no legal wrong.

The judgment appealed from should be affirmed, with costs.

Froessel, J. (dissenting).

Appellant, during his many years as a member in good standing of respondent’s hospital staff, rendered service to the hospital in reliance upon the provisions in article IX of the by-laws of the medical staff, which secure to him the enjoyment of certain privileges upon his retirement. That article provides:

‘ ‘ When any surgeon or physician of the Hospital Staff below the rank of Director or Attending shall have reached the age limit as provided for by the Constitution of the Board of Trustees, such surgeon or physician shall thereafter continue to retain the rank then held, but without service, and shall he designated with this title, 1 off service. ’ These physicians and surgeons shall enjoy the following Hospital privileges;
“ 1. The care of their private patients in the Hospital.”

Respondent now seeks to divest appellant of his right to the enjoyment of these privileges; a right to which he became entitled in 1959, when he attained the age limit provided for one in his rank. In my opinion, the fact that the hoard of trustees, to Avhom the hospital’s constitution commits the control, direction and management of all the affairs and property of the corporation, could liaA'e altered or abrogated the by-laws, or even discharged appellant on the day before he attained the slated age limit and became entitled to the privileges proAdded in article IX, does not mean that they may divest him of these rights after they vest.

111 my view of this ease, the controlling fact is that appellant was a member in good standing of the hospital staff when he attained the stated age limit in 1959. At that moment, by virtue of the above-quoted provision of the by-laws, he became entitled to the designation off-service ” and the privileges which accrue to one in his new “ off-service ” category. Indeed, the by-laws are couched in mandatory terms, providing that appellant11 shall be designated with this title ”, and “ shall enjoy ” the privilege which he now seeks. This is tantamount to a contract, and appellant’s right may not be impaired.

The fact that he was denied reappointment as a member of the hospital staff after May 1, 1960 is irrelevant, and cannot affect the rights to which he became entitled in 1959. I fully recognize that the board of trustees may not be restricted in the exercise of the sweeping powers the constitution commits to them, and intend no such limitation. The board, now as before, has the right to exercise its powers with respect to those members of the hospital staff who have not as yet attained the retirement age. They may not, however, reward 10 years of service, rendered in reliance upon rights assured by article IX, with a summary abrogation of these rights after appellant has become legally entitled to them. However plenary the board’s power, the short answer to this case is that it failed to exercise it in time.

Accordingly, the judgment appealed from should be reversed and summary judgment directed in favor of appellant.

Chief Judge Desmond and Judges Dye, Fuld, Van Voor.his, Burke and Foster concur in Per Curiam opinion; Judge Froessel dissents in a separate opinion.

Judgment affirmed.  