
    The People of the State of New York ex rel. August Holmstrom, Appellant, v. The Independent Dock Builders’ Benevolent Union of Greater New York and Vicinity, Respondent.
    First Department,
    November 6, 1914.
    Corporations — membership corporations — expulsion of member — right to hearing—when mandamus issues to compel restoration to membership.
    Where the by-laws of a labor union, incorporated under the Membership Corporations Law, provides that members whose acts are detrimental to the welfare of the organization shall be subject to forfeiture of membership, or any action “the body may see fit to take after a fair trial before the Executive Board or the body in session,” a resolution providing that the action of the executive board in proceedings to expel a member shall be final is unwarranted, for no member may be disciplined except by the body of the corporation itself.
    Hence, where a member, having been tried only before the executive board, was denied admission to a subsequent meeting at which the report of the executive board was presented to the corporation, .and thereafter, at another meeting, was expelled by action of the corporation itself, but without notice, the expulsion is unlawful and mandamus will issue to compel his reinstateipent.
    The court" in reviewing proceedings to discipline a member of a voluntary association or membership corporation will search the record to see whether the proceeding has been in accordance with the constitution and by-laws of the organization, whether the charges are substantial, and whether the member has had fair notice and opportunity to be heard. If so, the court will not substitute its judgment for that of the organization.
    Appeal by the relator, August Holmstrom, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1914, denying his motion for a writ of mandamus requiring respondent to reinstate him as a member.
    
      Benjamin W. Moore, for the appellant.
    
      John J. O’Connor, for the respondent.
   Clarke, J.:

The respondent is a membership corporation duly organized under the laws of the State of New York, commonly called a labor union. Relator was a member thereof. Section 12 of article XII of the by-laws provides as follows:

“Any elected or appointed officer or member whose act or acts are detrimental to the welfare of the Organization, whether direct or against an officer or member of the Organization itself, shall be subject to forfeiture of his office or membership, or any action the body may see fit to take after a fair trial before the Executive Board or the body in session.”

Certain charges were made against the relator, and at a meeting of the defendant held on the 12th of March, 1914, a resolution was adopted that the charges be brought before the executive board, and that the action of said board be final. A meeting of the executive board, all the members being present, was held on March twenty-fourth, relator being present. He was informed that he was entitled to counsel and was entitled to ask any question of the witnesses he desired to. He was asked whether he would proceed before the board at that meek ing. He announced that he would proceed and did not require any lawyer. He, therefore, waived all preliminary questions and duly submitted himself to the jurisdiction of the board. Whereupon a number of witnesses were examined and the executive board found the relator guilty of the charges made. It will be noted that the by-law governing disciplinary proceedings expressly provides that a member “shall be subject to forfeiture of his office or membership, or any action the body may see fit to take, after a fair trial before the Executive Board or the body in session.” It is plain, and is now conceded, that the power to act, that is, to pronounce judgment approving the finding and to fix punishment or penalty, was reserved to the corporation, after a fair trial, either before the executive board or a meeting of the members of the corporation itself. The initial resolution, therefore, providing in this instance that the action of the executive board should be final, was unwarranted by the by-laws. It is clear that no member could be disciplined except by the body itself.

At the next regular meeting of the respondent, held on the twenty-sixth of March, after the trial before the executive board, relator presented himself for admittance to the meeting, but the sergeant-at-arms, under the orders of the president, refused to admit him upon the ground that he had been expelled and had no rights there. Whereupon, on the thirtieth of March, upon affidavits verified on the tweniy-seventh and the thirtieth, he obtained from a justice of the Supreme Court an order requiring respondent to show cause why a peremptory or alternative writ of mandamus should not issue requiring the respondent forthwith to restore and reinstate the relator to all his rights and benefits in said organization, which order was returnable on April sixth. The hearing was adjourned to April eighth, upon the request of the respondent, and on the eighth it was adjourned to April thirteenth. On April eighth relator’s attorney was furnished with a copy of the replying affidavits of the respondent. These affidavits, which were verified on April sixth, stood upon the proposition that the proceedings had been regular and in accordance with the provisions of the by-laws, and no question was raised therein but that relator had been expelled and that such expulsion was justifiable and proper. On April tenth relator’s attorney was notified by the attorney for respondent that he was going to change the affidavits to meet a new condition and, being asked what that was, replied: “Something was done last night, but just what was done I don’t know.” On April thirteenth amended affidavits on behalf of the respondent were handed in, which set up that at the meeting of the respondent held on April ninth the minutes and findings of the executive board of March twenty-fourth were read and, upon the reading of the minutes and findings, motion was duly made that the minutes and findings of the board be approved and that relator be expelled from the union, and that motion was carried.

The well-established rule governing interference by the courts with the internal affairs of voluntary associations and membership corporations in regard to their disciplinary proceedings is, that the court will look into the record to see whether the practice and proceeding has been in accordance with the constitution and by-laws of the organization, whether the charges are substantial, and whether the member has had fair notice and opportunity to be heard. In short, has the member received fair play ? If so, the court will not substitute its judgment for that of the organization. The cases bearing upon this subject may be found collected in Williamson v. Randolph (48 Misc. Rep. 96).

The difficulty with the case at bar is that it is conceded that relator was denied admission to the meeting of the respondent on the twenty-sixth of March, when the report of the executive board was presented, upon the ground that he had been expelled, and that he had no notice of the meeting on the ninth of April, while these proceedings in court were pending,' and so, of. course, was not present thereat. The fact that the action alluded to was taken at such meeting during the -pendency '.of this proceeding is convincing proof that- the respondent'.had been advised that the original resolution conferring final jurisdiction upon the executive board was illegal and" that the organization alone had the power to take final actioni. "But such final action, taken in the absence of relator, without notice to him, and after he had been officially denied admission to the meeting of the organization upon the ground that he had been expelled, deprived him of the right to be heard upon the question whether the action of the executive board should be affirmed, and what punishment should be inflicted, if any. He was, therefore, deprived of a substantial right given him by the organic law of the organization of which he was a member, and has, therefore, been illegally expelled therefrom.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for the issuance of a peremptory writ of mandamus requiring his reinstatement granted, with ten dollars costs.

■ Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  