
    Daniel P. French et al., Respondents, v. Louis Caputo, as President of District Council No. 9, Brotherhood of Painters, Decorators & Paperhangers of America, for the Boroughs of Manhattan and The Bronx, Appellant.
   Judgment unanimously affirmed, with costs to the respondents. Plaintiffs are officers of Local Union 490. Defendants are the officers of District Council No. 9, of which the local union is one of the constituent members. Plaintiffs were brought to trial on charges by the District Council, found guilty and subjected to discipline. They brought this action to annul the proceedings before the District Council’s trial board and to enjoin enforcement of the penalties. Trial Term found in their favor. It is true that the trial board was not constituted as the constitution of the council provides; and although the method adopted was not unfair to respondents, the decision of the Trial Term could be sustained on this ground. A ground, however, that appeals with more cogency to some of this court is that the charges upon which plaintiffs were tried are not a ground for disciplinary action. Plaintiffs circulated a leaflet criticizing the conduct and reflecting on the motives of certain officers of the District Council. While we do not understand that every such activity is immune from disciplinary action, we would find that the matter circulated here comes within the classification of criticism and opposition implicitly allowable for the preservation of the democracy of labor unions (Madden v. Atkins, 41ST Y 2d 283). Concur — Breitel, J. P., Rabin, McNally and Steuer, JJ.; Eager, J., concurs in result,  