
    The People ex rel. Matthias Merscheim, Resp’t, v. The Musical Mutual Protective Union, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1888.)
    
    Benevolent societies—Expulsion op members—Proceedings shall be in accordance with the requirements op the by-laws—Jurisdictian OF THE DIRECTORS.
    The relator was a member of the defendant association. The by-laws provided for the expulsion or suspension of members, and further provided that ‘ ‘ no such expulsion, suspension or fine, shall be made, except on charges preferred, a copy of which shall be served upon the member so charged.” A summons was served upon the relator to attend a meeting of the directors and show cause why he should not be expelled, etc. No copy of the charge was served upon him. At the meeting he was expelled. Held, the proceeding was instituted and carried on without complying with the fundamental requirement of the by-laws for that purpose, and on account of that omission, the directors had no jurisdiction to try or expel the relator as they did.
    Appeal from a judgment directing the issuing of a peremptory mandamus for the restoration of the relator to his rights and privileges as a member of the union.
    
      King and Clement, for app’lt; August P. Wagener, for resp’t.
   Daniels, J.

The defendant is a corporation incorporated by chapter 168 of the Laws of 1864, as amended by chapter 321 of the Laws of 1878. By its charter the defendant was empowered to make by-laws, rules and regulations not inconsistent with the laws of the state, for suspending or expelling such members as should refuse or neglect to com ply with its by-laws and regulations, and for the management of its property, the regulation of its affairs, and the transfer of its stock. It was also provided by the act of 1878 that any member of the society violating its by-laws might be expelled, after being afforded an opportunity to be heard in his defense in such manner as the society might, from time to time, prescribe by its by-laws. And it did direct, by section 1 of article 12 of the by-laws, that any member might be suspended or expelled by the board of directors, or fined in a sum not exceeding $100, for the nonobservance of its constitution, by-laws or rules, for disobedience of the orders of the board of directors, or nonpayment of fines imposed. “But no such expulsion, suspension or fine shall be made except on charges preferred, a copy of which shall be served upon the member so charged.” It was also declared by article second of the constitution to be one of the objects of the society to secure the enforcement of good faith and fair dealing with its members.

The relator was a member of the Musical Mutual Protective Union, and he was summoned to attend a meeting of the board of directors by a notice served upon him on or about the 10th of March, 1886. This notice or summons, was in the following words:

New York, March 10, 1886.

Mr. Merscheevi:

Sir—You are hereby summoned to attend a meeting of the board of directors at 64 East Fourth street, on Friday, the 12th instant, at 11 o’clock, and to show cause why you should not be expelled from membership for violation of article 12, section 1 of the by-laws, to wit: for disobedience of the order of the board of directors on the 9th day of March, 1886, and also for violation of article 2 of the constitution in failing to enforce good faith and fair dealing between the members of the union.

F. EOCHOW, Secretaiy.

And in support of the action, it was objected to as being insufficient to comply with the charter of the society and its by-laws regulating the proceedings for the suspension and expulsion of its members. The particular insufficiency presented by the objection is, that no charges were made out,in writing or served upon the relator, and that without such charges the directors had no authority to carry on the proceeding against him which was taken. By the order referred to in the summons, the relator was ordered by the board of directors “to vacate the place at the Palm Garden, and render the same to Mr. Bruno Theile and his orchestra.” And by a postscript his attention was directed to section one of article twelve of the by-laws, which has been already mentioned. Neither this order, nor the -description or reference to it, was the specification which the by-laws enacted under the authority of the statute required to be .served upon the relator before the directors could proceed to remove him from his membership. What othe by-laws have enjoined is, that charges should be preferred, a copy of which should be served upon the member so charged.

By that it was intended that the misconduct of the member should be alleged against him in writing, and that a copy of the allegationf should be delivered to him to enable him intelligently to prepare for the presentation of any defense he might be able to make to it. This was wholly omitted in the proceeding which was taken. It is true that the summons stated that he was to show cause why he should not be expelled for the disobedience of the order of the board of directors, but this was not the specification of the offense intended to be required and included in this part of the by-laws. What was necessary was that he should be apprised by formal charges made of the facts of misconduct intended to be relied upon in the proceedings against him. By the evidence, which was taken upon the hearing, the facts were disclosed that he had improperly intervened to secure the exclusion of Theile from the position in which he had been employed and that the board of directors intended to require the removal of the relator from the place he had secured for himself in this manner, and the restoration of the displaced member of the society. As much as that certainly should have been stated in the papers served upon the relator as the foundation of the proceeding. That, by the evidence, was regarded as his offense. And it was for that offense that it was intended to subject him to the authority of the society in the way of suspension or removal. And it was certainly no difficult thing to have made a statement of that in writing and served it upon the relator, as it has been required by the by-laws and the statute authorizing them, before any proceeding for his removal could take place. Membership in this organization was attended with valuable rights and privileges and the relator could not be deprived of them, without a reasonably plain case being made against him and specifications previously served upon him, allowing evidence to be taken to prove that case. Hutchinson v. Lawrence, etc., 67 How., 38; People v. Musical Union, 1 N. Y. State Rep., 770.

The suggestion that the proceeding was supported by article 2 of the constitution is entitled to no weight whatever. For before any advantage can be derived from that source, some information in the form of a written charge should have been given to the relator apprising him in in what respect he had failed to observe good faith and fair dealing between himself and any other member of the association.

The relator by his appearance at the time and place mentioned in the summons did not deprive himself of his right to. the previous service of a copy of the charges intended to be made the subject of proof against him. For on such appearance he denied the right of the directors to proceed against him, and refused to answer the charge inferentially referred to in the summons.

If he had answered the summons as a charge, or contested the case before the directors, then these would have been grounds upon which a waiver of this right to a copy of the charges might be placed, but he did nothing of the kind. He said but little, and his conduct appeared to be actuated entirely by an indisposition to take any part in the proceedings which were affirmed by him to be without authority. And so they appear to have been by the evidence produced upon the trial of the action.

By section 2 of article 13 of the by-laws the relator could be reinstated at any regular quarterly meeting of the society by a two-thirds majority of all the members present, after having paid all dues ana fines standing against him and an extra fine of fifty dollars. This proceeding has not been, provided by way of a review of those instituted to remove the relator. Neither was any other form of appeal secured by the by-laws of the society. If there had been he would be obliged in the first instance to endeavor to obtain redress-by such an appeal. Loubat v. Leroy, 40 Hun, 546.

But no case has gone so far as to hold that a member removed under these circumstances should apply for restoration in this manner and submit to the payment of the extra fine of fifty dollars before he is at liberty to apply by action, to the courts for redress.

The proceeding resulted in the expulsion of the relator from the society. It was final as to him, depriving him of all his rights and privileges as a member of the defendant. It was instituted and carried on without complying with the fundamental requirement of the by-laws for this purpose, and on account of that omission, the directors had no jurisdiction to try or expel the relator as they did. Being without jurisdiction over the relator for the want of specific charges served upon him, the directors are still at liberty to proceed against him by another proceeding, if they shall consider that to be requisite for the good order and management of the affairs of the society. But as the facts of the case are now made to appear the relator cannot be excluded from membership' by the action which has been taken. against him to attain that result. And the proceedings having been illegal and without authority, he is entitled to the remedy by mandamus to secure his restoration. People v. St. Franciscus, etc., Society, 24 How., 216.

The judgment recovered appears to be right, and it should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.  