D'Aloia v. Unione Fratellanza Italiana of Vineland
| Decision Date | 18 June 1913 |
| Citation | 84 N.J.L. 683,87 A. 472 |
| Parties | D'ALOIA v. UNIONE FRATELLANZA ITALIANA OF VINELAND. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Action by Raffaele D'Aloia against the Unione Fratellanza Italiana of Vineland. From judgment for defendant, plaintiff appeals. Reversed.
Henry S. Alvord, of Vineland, for appellant.
Herbert C. Bartlett, of Vineland, for respondent.
The plaintiff below was a member of an association incorporated under an act entitled "An act to incorporate benevolent and charitable associations," approved April 9, 1875. He was expelled therefrom, and brought this suit in the Cumberland circuit court against such association to recover damages for such expulsion claiming it to have been illegal. At the trial the learned trial judge granted a nonsuit based upon the opening statement of counsel of the plaintiff, and from the consequent judgment the plaintiff appeals pursuant to the Practice Act 1912 (P. L. 1912, p. 377).
We are of opinion that the nonsuit was erroneous.
It appeared from such opening statement of counsel that the plaintiff proposed to prove in effect that he was a charter member of the defendant benevolent association, whose main object was and is the relief of sick members; that, while such member, such association, in his absence, and without any notice whatever having been given to him that any charge was to be made against him, expelled him from membership, and thereby he has been deprived of the benefits of membership in the association.
Now, of course, when a motion for compulsory nonsuit is based on the opening statement of counsel, plaintiff is entitled to the benefit of all facts proposed to be proved, and in reviewing the legality of the nonsuit we must regard them as proved.
Clearly the facts proposed to be proved constituted an illegal expulsion. A member Of a benevolent association against whom proceedings are pending which have expulsion for their object is entitled to notice so that he may make such defense as he may have to the charges upon which the proceedings are based. Venezia v. Italian Mut. Benev. Society of Perth Amboy, 74 N. J. Law, 433, 65 Atl. 898; Berkhout v. Royal Arcanum, 62 N. J. Law, 103, 43 Atl. 1; Sibley v. Carteret Club of Elizabeth, 40 N. J. Law, 295.
No doubt the trial judge recognized that rule. It appears that he granted the nonsuit upon the theory that the plaintiff must content himself with reinstatement through mandamus, and cannot...
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