
    Joseph Connell, Respondent, v. William Stalker, President of the Journeymen Stone Cutters’ Association of New York, Jersey City, East Chester and Vicinity, Appellant.
    (Supreme Court, Appellate Term,
    November, 1897.)
    1. Unincorporated associations— Suspension of member and exclusion from work — Custom cannot vary by-laws.
    Where the by-laws of an unincorporated stone cutters’ association require its treasurer to surrender its books, papers and assets to its trustees on demand, he should not be suspended from his rights as a member and be deprived of work thereafter by the refusal of his associates to work with him, merely because he refused to surrender his books and accounts to a special committee, whose powers were ■ not proved; and proof offered, in an action brought by him to recover damages for his loss of work, of a custom of the association by which it had power, in investigations, to demand such property of its treasurer is properly excluded, as a mere custom should not in the ease of the infliction of a severe penalty, be allowed to override the express provisions of the by-laws that the treasurer shall surrender such property to the trustees.
    2. A verbal stipulation cannot be enforced — Estoppel.
    A verbal stipulation upon the part of the treasurer, that he would withdraw his suit if reinstated, is unavailable (under Rule 11) because it is not evidenced, by a writing; and cannot be enforced by way of estoppel, as a reinstatement was lawful and proper and could not have been relied upon by the association to its disadvantage.
    
      "3. Damages — A New York workman need not' seek work in Brooklyn.
    A stone cutter, excluded from an association in New York, is not bound to seek work in Brooklyn. Connell v. Stalker, 20 Mise. Rep, 423, affirmed.
    Appeal by the defendant from an affirmance by the General Term of the City Court of a judgment in favor of the plaintiff for $405.-96, damages and costs.
    Holden & Allen, for appellant.
    Alfred & Charles Steckler, for respondent.
   Daly, P. J.

The plaintiff obtained a verdict against the Journeyman Stone Cutters Association, unincorporated, of which he is a member, for $243, a sum agreed to be the regular wages of a stone cutter for nine weeks, the period for which he, was deprived of work on account of the action of the association against him. The defense to the action was that while treasurer of the association he refused to surrender his hooks and papers to a special committee appointed to investigate a certain bill or account. The plaintiff claims that under the by-laws he was required only to surrender his books and papers to the trustees, to be audited, or to be delivered to bis successor. ■

It was proved that on the plaintiff’s refusal to turn over his.hooks to the special committee, the association, at a regular meeting, adopted a motion that the members refuse to work with him, and that in pursuance thereof when plaintiff went to work the next day at St. Luke’s Hospital, where he was employed with tire members of the association, they were immediately called o'nt by the walking delegate, and the plaintiff had to he discharged from that employment, in order to induce them to resume work; also, that for nine weeks he was similarly excluded from working in the city of New . York, as all the stone cutters there were union men.

It sufficiently appears that by 'the action of the association in adopting the motion in question, the plaintiff was, in effect, suspended from his rights as a member, and the question for the trial court to decide was whether such action was within any power conferred by the constitution and by-laws, which formed the contract between the parties. White v. Brennan, 4 Abb. Prac. Rep. (N. S.) 162. The only authority contained in the constitution or by-laws for suspending a member appears to be that conferred by article XII of the by-laws which reads as follows:

“Any member who will at any time, work in any place styled by this association a scab shop, or violate this constitution and bylaws in any aggravated manner, shall be denounced by us as a scab, and shall forfeit all claim to this association as a member; and before being admitted again as a member, he shall pay a reinitiation fee not exceeding $80.00, and not less than $20.00, to be paid at the rate of not less than $5.00 a month, no part of the fine imposed to be remitted.”

It does not appear that in refusing to surrender his books to the special committee the plaintiff violated any provision of the constitution or by-laws. In the by-law concerning the duties of officers^ it is provided that the treasurer: “ Shall deliver up, when legally called upon, all moneys, bonds, papers, books, etc., belonging to the association, to the trustees, who shall have them audited by a public accountant, every four months, and also previous to his successor in office receiving .them.” ■;

Special committees are provided for by the by-laws, but their powers and duties are not prescribed. It was not shown what power was conferred upon the special committee in question. So far as the written constitution and by-laws show, it would appear that the treasurer might lawfully retain in his possession the books and papers until required, as above provided, to deliver them to the trustees for auditing, or to be turned over to his successor in office. It would seem, therefore, that the action of the society in suspending the plaintiff from his rights of membership for failure to comply with its direction was not warranted by anything in the written constitution or by-laws, which constitutes his contract with the association.

An attempt was made by the defendant to show a custom of the association by which it had the power, for the purpose of carrying on its investigations, of demanding the property of the association which plaintiff had in his possession. This proof was excluded, and the exceptions taken to the ruling of the court constitute the principal ground of. appeal. It would seem that a custom should not override the express provision of the by-laws prescribing when and to whom such property must be surrendered, and that if the association were accustomed to require the treasurer to do otherwise than as prescribed by the by-laws his refusal to comply should not subject him to the same punishment as a violation of the -by-laws themselves. The custom of special committees to require the books of the treasurer in pursuance of their investigation, and the custom of the treasurer to comply with such requisition would not tend to show the adoption by the association of a new by-law on -the subject. While it is true that the existence of a by-law may be established by custom or usage of a society, it appears that this association had prescribed the manner in which its by-laws might be amended, namely, at a regular meeting, after having been presented in writing two weeks previously and by a vote of two-thirds of the member’s. It would seem that where a member is to be subjected to the severe punishment prescribed for a violation of the by-laws “’in any aggravated manner,” it is not too much to hold • that the by-law should be established in the manner pointed out by the instrument by which the association is governed. The appellant did not, on the trial, offer to prove the-adoption of any new by-law, even by the offered proof of custom.

A further defense to the action was set up by supplemental answer, namely, that the plaintiff, had in consideration, of defendant’s agreement to restore him to his rights as a member agreed “ with certain members and representatives of the association defendant * * * to drop or discontinue all legal proceedings which he had instituted or prosecuted on account of the alleged cause of action set forth in the complaint of this action, arid, in- particular, that he would drop and discontinue this action, and that he authorized the said members and representatives to state this to the organization, and to advise his reinstatement on those terms, and that thereafter the members and representatives of the association defendant did state the said proposal to the members of the said association at a regular meeting, and on those terms, and in consideration of the promises of the plaintiff a certain motion was passed by the meeting by which the “plaintiff herein was duly reinstated as a member of the association defendant in good and regular standing, so that • the meinbers of the said association no longer refused to work with the said plaintiff, and the said agreement was in all other respects carried out and fulfilled by the said association.”

The alleged facts constitute no defense. It is not averred that the plaintiff released or agreed to release his claim for past damages. As to the agreement to discontinue the action, it appeared by the proof offered under the defense that such agreement was verbal. JSTo stipulation for a discontinuance of the action made out of court bétween the parties would be effectual unless evidenced by writing, as required by the rules of court. (Rule 11.) This is not a case where such a verbal stipulation would be enforced by way of estoppel, as where the defendant relies upon it to his disadvantage. The suspension of the plaintiff being unlawful, it was the duty of the defendant to reinstate him, and its doing so resulted in-no disadvantage to it.

The defendant attempted to show that the plaintiff, though deprived of work in New York, could have obtained employment in Brooklyn, and excepted.to the exclusion of evidence to that effect, and also to the charge of the trial judge, that plaintiff was not bound to go outside of the city of New York for work. In what respect this wás error is not pointed out. Defendant had no right to force the plaintiff to leave his place of residence in order to support himself. He had the right to live and work where he chose. The judgment should be affirmed.

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs. .  