In re Haebler

• Decision Date: 26 May 1896
• Parties: In re HAEBLER.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 414

44 N.E. 87

In re HAEBLER.

Court of Appeals of New York.

May 26, 1896.

Appeal from superior court of New York City, general term.

Application by Ernest T. Haebler for a writ of peremptory mandamus against the New York Produce Exchange. From an order of the general term of the superior court of the city of New York (36 N. Y. Supp. 427) affirming an order of the special term (Id.) which directed that a peremptory writ of mandamus issue commanding the New York Produce Exchange to reinstate the applicant as a member of that corporation, the exchange appeals. No alternative writ was granted or asked for, but an order was made directing that a peremptory writ should in the first instance issue. The order granted was based upon affidavits, and made on the return of a showcause order. Upon the return of the order, the affidavits of the relator and of the president of the Produce Exchange were read, and upon such affidavits alone the order for a peremptory writ of mandamus was granted. Reversed.

Abel E. Blackmar, for appellant.

Robert B. Honeyman, for respondent.

MARTIN, J.

A peremptory writ of mandamus can be issued in the first instance only where the applicant's right to it depends solely upon questions of law. When any question of fact arises, a peremptory mandamus cannot be issued until an alternative writ has been issued, served, and the return day has elapsed. Code Civ. Proc. § 2070. As the order in this case was for a peremptory writ, this court can consider nothing except the statements in the moving affidavits which are not denied, and the facts set up in the answering affidavits. Where, upon a motion for a mandamus, opposing affidavits are read, which are in conflict with the averments in the moving affidavits, and notwithstanding this the relator demands a peremptory writ, it is equivalent to a demurrer; and as to any disputed question of fact the answering affidavits are conclusive, and must be regarded as true. People v. Cromwell, 102 N. Y. 477, 7 N. E. 413;People v. Railroad Co., 103 N. Y. 95, 8 N. E. 369;People v. Brush, 146 N. Y. 60, 40 N. E. 502;People v. Mayor, etc., 149 N. Y. 215, 43 N. E. 554. Therefore, as most of the averments in the relator's affidavit are contradicted by the affidavits read in opposition to the motion, the question of the relator's right to the order granted must be determined principally upon the facts contained in the latter.

The New York Produce Exchange was created under an act of the legislature passed April 19, 1862. It was incorporatedunder the name of the New York Commercial Association. In 1868 its name was changed to New York Produce Exchange. The statute of 1862 was several times amended. At the time of the transaction which was the ground of the defendant's suspension, the statute declared the purpose of the corporation to be to provide suitable room or rooms for the Produce Exchange in the city of New York, ‘to inculcate just and equitable principles in trade, to establish and maintain uniformity in commercial usages, to acquire, preserve and disseminate valuable business information, to adjust controversies and misunderstandings between persons engaged in business, and to make provision for the widows and families of deceased members.’ Laws 1882, c. 36, § 2. It also conferred upon the corporation power to make all proper and needful by-laws not contrary to the constitution and laws of the state of New York or of the United States, and to admit new members and expel any member in such manner as might be provided by its by-laws. In pursuance of the authority thus conferred, the corporation established certain by-laws, which were in existence at the time of the controversy between the parties, including section 32, which provided: ‘Any member of the Produce Exchange who shall be accused of willful violation of the charter or by-laws, or of fraudulent breach of contract, or of any proceeding inconsistent with just and equitable principles of trade, or of other misconduct, shall, on complaint, be summoned before the complaint committee, when, if he desire, he shall be heard in his defense. Should the committee be unable to conciliate the disputants, or induce them to arbitrate, and the circumstances seem to warrant, the complaint shall be referred to the board of managers, when both plaintiff and defendant shall have an opportunity to be heard again in person prior to final action in the case; and if, in the opinion of the board, the charge or charges against said defendant be substantiated, it may, by a vote of not less than two-thirds of all the members present, either censure, suspend, or expel him from the exchange.’ The rules of the Produce Exchange do not purport to definitely regulate the trade in all the products which are commonly dealt in by its members, and therefore it had adopted no rules specifically regulating trade in cement. As a general thing, it is only in cases where products and merchandise are dealt in by contracts for future delivery of designated grades that rules are provided regulating the grade, securing the performance of the contract by margins, and that special committees are appointed to establish such grades. There is a great number of products, animal, vegetable, and mineral, that are dealt in by members both on the floor of the exchange and elsewhere, the dealing in which is not specifically regulated by rules passed for that purpose. The New York Produce Exchange claims the right to inculcate just and equitable principles of trade, without reference to the question whether it has by its rules attempted to exercise its power of establishing uniform commercial usage in such trade.

The relator's version of his transactions with C. B. Richards & Co. cannot be considered, as the statements upon that subject in his affidavit were put in issue by the replying affidavits of the appellant. On the 11th of July, 1895, C. B. Richards & Co. filed a complaint against the relator, with the proper committee of the appellant, accusing him of proceeding inconsistent with just and equitable principles of trade, in his failure to comply with the terms and conditions of a contract dated January 22, 1895, for 8,000 barrels of Portland cement, which was partially delivered. Proceedings were then regularly instituted under the by-laws of the exchange, and both the complainant and the relator appeared before such committee. The committee, being unable to conciliate the disputants or to induce them to arbitrate, duly referred the matter to the board of managers. Both parties received due and regular notice of the proceedings before the board, and were given an opportunity to be heard. The case came on for trial before the board July 24, 1895, when both parties were present, and were fully heard. A written statement is set forth in the record which purports to contain the relator's objections to the proceedings against him before the board, which is to the effect that it had no jurisdiction or authority over the parties or the contract in dispute, and the grounds upon which such objections were based are specifically stated. There is, however, no proof that that statement was ever served upon, delivered to, or seen by the appellant, its board of managers or committee, prior to the decision of the board. The relator also alleged in his affidavit that his counsel stated to the board that he desired to take objections to the jurisdiction of the exchange and to the proceedings, and that the relator reserved such objections before entering upon the trial. The affidavit read in opposition to the motion contains an express denial of those statements, and allegations to the effect that the counsel for the relator did not state to the board of managers that he desired to take objections to the jurisdiction of the exchange and the proceedings of the board, and that the relator did not reserve any objections to the proceedings, but entered upon his defense upon the merits. Hence, under the rule of law previously stated, the affidavit of the appellant must control, and the record must be treated as establishing those facts.

The complainant offered evidence, both documentary and oral, which tended to show that the relator was guilty of proceedings inconsistent with just and equitable principles of trade in refusing to accept and pay for a shipment of cement which came into the port of New York by the steamer Salerno; that he was bound by a written contract to accept the same, but rejected it, on the unfounded pretext that the parties had agreed that the shipment should be made by the Red Star Line of steamers, and not by the Salerno, when there was no such agreement between the parties, as the relator well knew; that his reason for refusing the shipment was not put forward in good faith, but was a mere pretext; and that the relator did not claim at any time that he rejected the shipment because it was the third in the month of May, until after the final action of the board. The complainant also offered evidence which tended to show that the relator accepted a delivery order for two shipments of cement, held the same seven days, in which he had an opportunity to resell it; that it had declined in price since the making of the contract; and that, after keeping the order for seven days, he, in violation of his contract, rejected it, on the unfounded pretext that it was of short weight, and the cooperage defective, when, as a matter of fact, as the relator well knew, the rejection of the goods was not justifiable or made in good faith. Both the parties examined and cross-examined the witnesses produced, and themselves testified as witnesses in the proceeding. Three afternoons were consumed by the board in hearing the evidence, and 96 pages of testimony were taken, no part of which is contained in the record. Upon the conclusion of the trial, after considering the testimony, the board of managers were unanimously of the opinion that the...