
    BURNS v. BRICKLAYERS’ BENEVOLENT UNION.
    
      City Court of Brooklyn, Special Term;
    
    February, 1890.
    
      Oorporations ; remedies of member to review fine.] A member of art incorporated association formed for the purpose of obtaining by legal means a fair remuneration for the labor of its members, who has been fined for violation of the laws of the corporation, in continuing in the employment of one who had not complied with its rules as to payment of employes, cannot maintain an action to annul such fines and for restoration of his privileges, until he has exhausted the remedies provided by the by-laws by appeal from the imposition of the fines to the next monthly meeting of the association, and to the judiciary of the International Union.
    Trial by the court.
    John Burns brought this action against the Bricklayer’s Benevolent and Protective Union of the city of Brooklyn to annul certain fines imposed upon him by the defendant corporation, of which he was a member, for a restoration of his privileges as a member, and for damages, etc.
    
    The court found the facts as follows :
    
      Findings of fact.
    I. That the defendant is and for several years heretofore was a domestic corporation organized under the laws of the State of New York and that its objects are to obtain by legal means fair remuneration for the labor of its members.
    
      II. That the defendant is a member of the Bricklayers’ and Masons’ International Union of America and is subject to the laws and governed by the said International Union.
    III. That the plaintiff on February 11, 1889, and for nine years prior thereto was a member of the defendant and as such member the plaintiff subscribed to and became bound by the laws of the defendant and the said International Union.
    IV. That during the week ending Saturday, December 22, 1888, the plaintiff was employed by one Thomas H. Bobbins as a bricklayer, and on the afternoon of said Saturday was not paid his weekly wages due that day and that same were refused him by said Bobbins which was a violation of the laws of the defendant, which plaintiff well knew.
    V. That said Bobbins did not pay to the plaintiff said wages until 12 o’clock on Monday, December 24, 1888, and did not then pay the plaintiff seven hours detained time, which omission on said Bobbins’ part was a violation of the laws of the defendant, which plaintiff well knew.
    VI. That said Bobbins from and after December 22, 1888, down to and including February 11, 1889, to the knowledge of the plaintiff failed to pay his employees their wages'weekly and also employed men not connected in any manner with the defendant or any society subordinate to the said International Union, all of which were in violation of the defendant’s laws as plaintiff well knew.
    VII. That the plaintiff left the employ of the said Bobbins on said Monday, December 24, 1889, and returned to work for said Bobbins on January 2, 1889, while said seven (7) hours detained time was still due and owing to him by said Bobbins, and continued, with about two weeks intermission, working for said Bobbins until April following and that by so returning and working for said Bobbins plaintiff violated the laws of the defendant as he well knew.
    
      VIII. That for so violating the defendant’s laws, charges-were duly presented to the defendant against the plaintiff, and hearings were had upon said charges after due notice-thereof had been given to the plaintiff and the plaintiff was-thereupon found guilty of the charges so made.
    IX. That the plaintiff for so violating the defendant’s-laws was fined on four (4) separate occasions as follows: January 7, 1889, the sum of ten dollars; January 14, 1889, the sum of twenty-five dollars ; January 28, 1889, the sum-of twenty-five dollars; February 11, 1889, the sum of fifteen dollars, making in all the sum of $75.
    X. That the plaintiff on and since May 6, 1889, has paid unto the defendant on account of said fines, in instalments, in all the sum of twenty-five dollars, leaving a balance unpaid on said fines of fifty dollars.
    XI. That the laws of the defendant during all of the said times aforesaid provided for an appeal from the imposition of said fines to the next monthly meeting of the defendant after such fine and also to the judiciary of the said International Union.
    XII. That the- plaintiff did not appeal to the said monthly meeting of the defendant or to the judiciary of the said International Union.
    
      Charles F. Brandt, for plaintiff.
    I. The form of action is proper.
    II. Damages are recoverable (Code Civ. Pro. §§ 484, 3,339.)
    III. As to plaintiff exhausting his remedies: Angeli & Ames on Corp. (11 ed.) § 341; State v. Merchants’ Exchange, 2 Miss. App. 96 ; 15 Abb. N. C. 47, n.,‘ Gosling v. Veley, 12 Q. B. 347).
    IV. The by-laws are unreasonable and illegal (Fritz v. Muck, 62 How. Pr. 69 ; People v. Franciscus Benev. Soc., 24 How. Pr. 216, 221; Wachtel v. Widows’ & Orphans’ Soc., 84 N. Y. 28; Cooley’s Const. L. 298; Dodwell v. Oxford, 2 Vent. 34 ; Guilford v. Clarke, 2 Id. 248; Oxford 
      v. Wildgoose, 2 lev. 293 ; Stuyvesant v. New York, 7 Cow. 585 ; New York State v. New York, 3 Duer, 119 ; Wood v. Searl, J. Bridg. 141; 3 Leon. 8; Mobille v. Juille, 3 Ala. 137 ; 2 Kyd. Corp. 157; Willcock Mun. Corp. 154, § 368).
    V. The mode of enforcing the penalty is by action of assumpsit (Barber Surgeons v. Pelson, 2 Lev. 252; Lee v. Wallis, 1 Kenyon, 295 ; Wooly v. Idle, 4 Bun. 1952; Felt-makers v. Davis, 1 Bos. & P. 98 ; Adley v. Reeves, 2 M. & S. 60; Mayor of Exeter v. Tumlet, 2 Wils. 95; Gunmakers v. Fell, Willis, 390).
    
      Thomas E. Pearsall, for defendant.
    I. At common law a member of a corporation could be expelled for offenses against it (People v. Medical Society, 24 Barb. 578 ; People ex rel. Thatcher v. N. Y. Commercial Assoc., 18 Abb. Pr. 271; People ex rel. Pinckney v. N. Y. Fire Underwriters, 7 Hun, 248; People ex rel. Corrigan v. Young Men’s Father Matthew Soc., 65 Barb. 395).
    II. Plaintiff had sufficient notice (Wachtel v. Widows’, etc. Socty., 84 N. Y. 28 ; Commonwealth v. Penn. Beneficial Inst., 2 Sarg. & R. 141; Vatable v. N. Y., Lake Erie, etc., R. R. Co., 96 N. Y. 49).
    III. Plaintiff has not exhausted his remedies under the laws of the corporation (Poultney v. Bachman, 31 Hun, 49; rev’g. 10 Abb. N. C. 252; Lafond v. Deems, 81 N. Y. 507, 514; White v. Brownell, 4 Abb. Pr. 162; Gebhard v. N. Y. Club, 21 Abb. N. C. 248; Baum v. N. Y. Cotton Exchange, Id. 251; Karcher v. Supreme Lodge Knights of Honor, 30 Abb. L. J. 437 ; Harrington v. Workingmens’ Benev. Assoc., 27 Id. 438 ; Osceola Tribe, etc. v. Schmidt, 25 Id. 333 ; People ex rel. Deverell v. Musical Mut. Protective Union, 27 State Rep. 963; McGuire v. Trustees St. Patrick’s Cathedral, 27 Id. 192).
    IY. Plaintiff’s remedy is by mandamus (Angell da Ames on Corp. (2 ed.) 566; O’Reilly v. Mutual Life Ins. Co., 2 Abb. Pr. N. S.167, 171; People ex rel. Doyle v. N. Y. Benev. Soc., 3 Hun, 361; People v. German Church, 53 N. Y. 103).
    
      
       The pleadings were as follows:
      “ The plaintiff above named complaining of the defendant alleges;
      “ I. That at the times hereinafter mentioned, the defendant was and now is a domestic corporation, duly organized and existing by and under the laws of the State of New York.
      “II. That the object of said corporation, as appears by its Constitution and By-laws, which plaintiff begs leave to refer to and hereby makes a part of this complaint, is to obtain by legal means a fair remuneration for the labor of its members.
      “III. That plaintiff has been a member of said corporation for the past ten years, and as such is entitled to all the privileges and rights of members.
      “ IY. That on or about the 2nd day of January, 1889, plaintiff, with other fellow-workmen, members of the defendant corporation, was ordered by the duly-appointed walking delegate of the defendant ‘ to strike ’ on the job where they were then working, and plaintiff in> obedience to said order did ‘ strike;’ that plaintiff under the orders of the defendant, its agents, servants or employees, remained on the ‘ strike ’ for a period of two weeks; that at the expiration of said two weeks, plaintiff being poor and the head of a family wholly dependent upon him for support, and not having been allowed the compensation allowed to married men when on a ‘ strike ’ pursuant to Article XII of the Constitution of the Bricklayers’ and Masons’ International Union of America, which plaintiff begs leave to make a part of this complaint, returned to work on the job aforesaid, and for so returning and so working, plaintiff was fined several times by the defendant, the aggregate amount being seventy-five dollars.
      “V. That the infliction of said fine was arbitrary, capricious, unreasonable, and contrary to the spirit and policy of the Constitution and By-laws of defendant.
      “VI. Plaintiff further alleges on information and belief that the defendant or its officers never duly made application for authority to * strike,’ and never received the permission to order a ‘ strike’ of its members as required by Article XII aforesaid; that said strike was therefore unauthorized, illegal and improper, and all acts and proceedings of defendant under color of said ‘ strike ’ were null and void.
      “ VII. That by reason of said ‘ strike ’ and all acts and proceedings of defendant thereunder, to wit: the infliction of the fines aforesaid, and the refusal of defendant to issue to plaintiff such credentials as would allow him to resume work with Union employees of labor, plaintiff has been and is nowr incapacitated in obtaining work, to his damage four hundred dollars.
      “ Wherefore, plaintiff demands judgment against the defendant;
      “ 1. That the 1 strike ’ ordered on or about January 2nd, 1889, be declared irregular, unauthorized and void, and all acts and proceedings of defendant under color of said ‘ strike ’ be declared null and void.
      “ 2. That the three separate fines, or as many as there were affecting plaintiff, aggregating the sum of seventy-five dollars, be declared null and void, and of no force aud effect.
      “ 3. That the amount paid by plaintiff on account of said aggregate amount of fines be credited to plaintiff on the books of the association as and for dues and assessments that may legally arise hereafter.
      
        “4. That plaintiff be reinstated to said union and to its rights and privileges to the extent of being allowed to resume work as a union man, and that he be given such credentials as will show that he is a member of defendant in good standing.
      “5. That the defendant pay to the plaintiff the sum of four hundred dollars as his damages, besides costs.
      The defendant answered as follows:
      “The defendant answering the plaintiff’s complaint herein:
      “ First. Admits it is a domestic corporation; and admits that its objects are to obtain by legal means a fair remuneration for the labor of its members; and it further admits that plaintiff was at one time one of its members, but it denies that planitff is now entitled to all the privileges and rights of members. Defendant further denies that plaintiff was ordered by its walking delegate or any one else ‘ to strike ’ on the job where he was working on or about January 2, 1889, and it denies that the plaintiff did ‘strike;’ further answering the plaintiff’s complaint defendant denies that plaintiff under orders of the defendant, its agents, servants or employees remained on ‘ strike ’ for a period of two weeks or any other period, and defendant admits that it imposed fines upon the plaintiff but denies that said fines were imposed for the plaintiff’s returning to work upon said job after such alleged ‘ strike.’
      “ Defendant further answering the complaint, denies that the infliction of said fine was arbitrary, capricious, unreasonable or contrary to the spirit and policy of the defendant's constitution and by-laws.
      “ Defendant further answering admits that it never made application for authority to ‘ strike ’ and further admits that it never received permission to order such alleged ‘ strike, ’ and further .answering, defendant alleges that no ‘ strike ’ was ordered or authorized by it upon such job.
      “ Second. Further answering, the defendant denies each and every allegation in said complaint not hereinbefore expressly admitted or denied.
      “ Third. Further answering the plaintiff’s complaint and for a separate answer and defense thereto, defendant alleges that the plaintiff has not before invoking the aid of this court in his behalf, exhausted his remedies against this defendant for its alleged illegal proceeding against him as provided for by its constitution and by-laws and by the constitution and rules of order of this Bricklayers’ and Masons’ International Union of America to which body the defendant is subordinate and by which body defendant is governed, both of which constitution and by-laws and constitution and rules of order respectively the defendant bogs leave to make a part of this answer.
      “ Wherefore defendant demands that the complaint herein be dismissed with costs.”
    
   Osboknb, J.

[Without written opinion filed the following conclusions of law.]

I. That the fines aggregating the sum of $75 imposed upon the plaintiff by the defendant between January 7, 1889 and February 11,1889, were duly and legally imposed.

II. That there remain due and unpaid to the defendant from the plaintiff the sum of $50 balance of said fines.

III. That before invoking the aid of this court the plaintiff must first exhaust the remedies provided for him by the defendant within the power of the defendant itself.

IV. That the complaint of the plaintiff must be dismissed with costs.

I accordingly direct judgment in favor of the defendant dismissing the complaint upon the merits with costs.  