
    Giacinto Scarano, Respondent, v. Philip Lemlein, Appellant.
    (Supreme Court, Appellate Term,
    February, 1910.)
    Trade unions — Contracts between members — Interpretation and construction.
    Where two members of a protective union enter into a contract of employment, the contract should be read in the light of the union’s by-laws in so far as they attempt to regulate the' terms of employment of its members, and the contract may be terminated by the employer when by the employee’s default he ceases to be a member in good standing and the by-laws contain' a provision that it shall be the duty of .every member to refuse to perform in any orchestra or band in which any person or persons are engaged who are not members in good standing.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan, rendered in favor of- the plaintiff, and from an order denying a motion for a new trial.
    William A. McQuaid, for appellant.
    Worden E. Winne (Harland B. Tibbetts, of counsel), for respondent.
   Lehman, J.

The plaintiff was employed by defendant as a member of his orchestra at Luna Park for the summer of 1906. ' Both the plaintiff and the defendant were members of the Musical Mutual Protective Union. The union’s by-laws provided that “ it shall be the duty of every member to refuse to perform in any orchestra or band in which any person or persons are engaged who are not members in good standing.”

In July, the plaintiff had some trouble with the union; and, according to his own story, the defendant said, “ You are suspended from the union.” The plaintiff then said he didn’t know anything about it; and defendant said,- “ I am very sorry; from this day your services are not required.” Later plaintiff testified that defendant added, “ unless you fix with the union.” Plaintiff claims that he never was notified that he was expelled from the union, and defendant’s evidence on that point was incompetent; but plaintiff stated that “ Before I was suspended he asked me if he would not pay for me that fine and I said no, because I am right. I don’t want to have any obligation to anybody.”

Disregarding the defendant’s testimony, we have the plaintiff’s admission that he was fined by the union; that defendant offered to pay the fine; that he was thereafter suspended from the union; and that defendant then told him that he would not require his services until he arranged his trouble with the union.

The trial justice held that this constituted a wrongful discharge.

It seems to me that, where two members of a protective union enter into a contract of employment, there is a presumption that the contract is to be read in the light of the union’s by-laws, in so far as these by-laws attempt to regulate the terms of employment of its members, and that the defendant could properly discharge the plaintiff when, under the by-laws of the union, the plaintiff was precluded from performing his work.

Seabury and Bijur, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  