
    (68 Hun, 565, 568.)
    WHITESIDE et al. v. NOYAC COTTAGE ASS'N.
    (Supreme Court, General Term, First Department.
    April 14, 1893.)
    1. Associations—Forpeiture oe Membership—Injunction.
    Where a member of an association has been cited to appear before an officer of the association and show cause why his rights of membership should not be forfeited for failure to pay assessments, injunction to restrain the forfeiture will not lie before the member has appeared before such officer and asserted his defense there.
    2. Appeal—Harmless Error.
    A denial of a motion to set aside a judgment on the ground that plaintiffs, through inadvertence, failed to submit proposed findings in time to be heard, is harmless error where all the questions sought to be raised can be presented on appeal from the judgment.
    3. Judgment on the Merits—Dismissing Complaint.
    A judgment dismissing the complaint is not a judgment “on the merits,” where those words do not appear in the judgment, though they do appear in the. motion for judgment, and are recited in the findings.
    Appeal from special term, New York county.
    Action by Newton E. Whiteside and others against the Noyac Cottage Association to remove assessments made on lots of plaintiffs by the association as a cloud on their titles, and to enjoin defendant from forfeiting plaintiffs’ rights as members of the association. From a judgment dismissing the complaint and vacating preliminary injunction, and from an order denying a motion to set aside the judgment and. to strike out the words “on the merits,” plaintiffs appeal.
    Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN, J.
    Hawkins & Delafield, (Eugene D. Hawkins, of counsel,) for appellants. .
    William C. Reddy, for respondent.
   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 nonpayment 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 40 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 hfoyae 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 T9, 1891, the board of managers notified the plaintiffs and the other members of the association that, pursuant to a resolution adopted, an assessment of 10 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 90 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 section 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 3 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, 24 N. E. Rep. 24, 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 vacating of the preliminary injunction were therefore proper. For these reasons we think the judgment should be affirmed, with costs.

Appeal, from Denial of Motion.

PER CURIAM.

The failure of appellant through mistake or inadvertence to submit proposed findings in time would not entitle them, as a matter of right, even though the trial judge had the power, to set aside the judgment; and, as the judge correctly held that all the questions sought to be raised could be presented upon exceptions to the decision on appeal from the judgment, no injury was done to appellants by a denial of his motion.

With respect to the second part of the motion, to have the words “on the merits” stricken out, it is sufficient to add that these words do not occur in the judgment, and «their appearance as one of the recitals does not raise the same question as would have been presented had' there been a judgment dismissing the complaint on the merits. We think, therefore, that the order appealed from should be in all respects affirmed, with $10 costs and disbursements.  