People ex rel. Deverell v. Musical Mut. Protective Union.

• Decision Date: 20 December 1889
• Citation: 118 N.Y. 101,23 N.E. 129
• Parties: PEOPLE ex rel. DEVERELL v. MUSICAL MUTUAL PROTECTIVE UNION.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 101

23 N.E. 129

PEOPLE ex rel. DEVERELL

v.MUSICAL MUTUAL PROTECTIVE UNION.¹

Court of Appeals of New York, Second Division.

Dec. 20, 1889.

Appeal from supreme court, general term, second department.

Petition for mandamus against the Musical Mutual Protective Union to compel the union to restore to membership the relator, Thomas R. Deverell. The circuit court directed the issuance of a peremptory writ, and awarded damages and costs to the relator. The general term affirmed the judgment, and defendant appeals.

Horatio C. King, for appellant.

W. Wickham Smith, for respondent.

BRADLEY, J.

The defendant was incorporated by Laws 1864, c. 168, to which an amendment was added by Laws 1878, c. 321. Its object was ‘the cultivation of the art of music in all its branches, and the promotion of good feeling and friendly intercourse among the members of the profession, and the relief of such of their members as shall be unfortunate, * * * and the establishment of a uniform rate of prices to be charged by members of said society, and the enforcement of good faith and fair dealing between its members.’ It is also provided that the defendant may make by-laws, and that any member violating any of them may be expelled from the society (after being afforded an opportunity to be heard in his defense) in such manner as it may by its by-laws prescribe. The relator was expelled from the society on July 31, 1885, by its board of directors. This proceeding by alternative writ of mandamus, instituted for the restoration of the relator to his membership of the defendant, was founded mainly upon the ground, alleged by him, that his expulsion was improperly made, in this: that it was done without trial, or opportunity given him to be heard. The character of the charges upon which the action of the board of directors was founded was not the subject of consideration of the court below. The only question here has relation to the proceedings taken with a view to the result given by the action of the board; and its disposition is dependent upon the result of the inquiry whether the board of directors acquired jurisdiction of the person of the relator in the proceedings had for his expulsion. This depends upon the facts found by the trial court so far as they have the support of evidence, having in view the by-laws of the society, by which it is provided that it shall be the duty of the board of directors to investigate all charges against members; that any member bringing a charge against another member before the board shall be required to appear personally, and substantiate his charge; that the secretary shall notify the parties to appear, and, if either party fail to appear, the case shall go by default, or be postponed to the next meeting of the board, upon the written request of either party, fully stating the reasons acceptable to the board; and that a member may be expelled for the non-observance of its constitution, by-laws, or rules, but that no such expulsion shall be made, except on charges preferred, a copy of which shall be served upon the member so charged, and such member shall have a reasonable opportunity for his defense. One of the objects of the union, as stated in its constitution, is the enforcement of good faith and fair dealing between its members.

The charge made against the relator was founded upon two letters written by him, having in view, as alleged, the displacement from his position in a musical band of one of the members of the defendant, and the procurement of such position for himself. The charges as made by the member were not served upon him. This was a substantial jurisdictional defect in the proceeding taken for his expulsion, and rendered it void, unless such omission was in some manner obviated. It is contended on the part of the defendant that such service of the charges was waived by the relator, and upon that contention arises the main question for consideration. The relator was served with a notice of the secretary summoning him to attend a meeting of the board of directors on the 24th of July, 1885, to then answer why he should not be fined or expelled from membership. He then appeared. The letters he had written were then exhibited to him, the writing of which he admitted, and stated that they were private letters, with which the board had nothing to do, and that he denied its jurisdiction to try him on account of anything contained in such letters. The secretary then said to him: ‘That is all.’ Thereupon the relator asked, and was informed, who made charges against him. The member by whom the charges were made was not present, and, after calling attention to that fact, the relator withdrew, without making any request for the postponement of the matter. He received no further notice of it until August 6th, when the notice that he was expelled July 31st was served on him. It also appears that the...