190 A.D. 164 | N.Y. App. Div. | 1919
Defendants demurred to the complaint, and plaintiff brought the demurrer on for trial as a contested motion under section 976 of the Code of Civil Procedure. The demurrer was overruled and the defendants appeal.
The complaint sets forth the following facts: Plaintiff is a membership corporation formed to promote harmonious relations between clothing manufacturers and their employees, establish beneficial trade conditions, improve the condition of those engaged in the trade, settle trade disputes, and in general foster the welfare of the industry. The defendants, copartners, were doing business as makers of young men’s clothing. On July 18, 1918, having made application for membership in the plaintiff association, said firm duly executed an agreement by which they agreed to abide by the certificate of incorporation and by-laws of the plaintiff, and to execute and carry out all the decisions, resolutions and requirements of its executive committee in accordance with the said certifi
It is further alleged that on October 28, 1918, a strike was called of all the tailors and cutters employed by members
It is then further alleged that in willful violation of the resolution and of their agreement with plaintiff, and without just cause, and during the continuance of the strike and lay-off, defendants employed cutters belonging to the same union as the strikers to work for them; that such course of action was in bad faith and contrary to the purposes and objects of the plaintiff and in willful disregard of the duties imposed upon defendants by the by-laws, and was detrimental to the peace and stability of the men’s and boys’ clothing industry; that by reason thereof plaintiff was greatly hampered in the settlement of the said strike, and its influence and prestige were greatly impaired. On January 10, 1919, written notice was delivered to defendants charging them with violating the foregoing resolution and duly notifying them of a meeting at which the committee would hear the charges and requesting them to appear at such meeting and answer such charges, and show cause, if any, why penalties should not be imposed upon them on account of the violation. On January 16, 1919, said charges were duly heard by the committee and a fine of $2,000 was imposed upon the defendants.
We think the plaintiff was without authority in law to fix the arbitrary assessment by way of a fine, and the plaintiff is not entitled to recover it. (10 Cyc. 363.) The case of City Trust S. D. & S. Co. v. Waldhauer (47 Misc. Rep. 7), relied upon by plaintiff and cited by the court at Special Term, does not lend support to plaintiff’s claim. Suit was there brought in relation to a bond given to an organization similar to this plaintiff and under somewhat analogous circumstances. The amount the defendant in that case was called upon to pay for violation of the rules of the organization was fixed by the bond, which recited that the sum named was agreed upon as liquidated damages and not as a penalty. In the present case neither the undertaking nor note referred to in the by-laws was given. It is quite competent for such an association as the plaintiff to fix penalties by way of fines for derelictions of its members, but the penalties must be determined according to some method, to which the member has agreed, at least impliedly by joining the association, not only as to the imposition of the fine but also as to the maximum amount thereof; otherwise, the association would be allowed to assess its own damages, which would be clearly unjust and improper. And a by-law imposing an excessive fine would be set aside as unreasonable. (Hagerman v. Ohio Building & Savings Assn., 25 Ohio St. 186; Lynn v. Freemansburg B. & L. Assn., 117 Penn. St. 1.) To hold that an association of this character might assess such amount as it saw fit for any infraction of its rules or by-laws, important or unimportant, would make possible a course that would work serious loss to members and invite an abuse of authority. A fixed reasonable fine in the nature of liquidated damages for injury sustained because of dereliction would be sustained.
Although no counter-motion was made by the defendants, the court has power to award them relief by sustaining the demurrer. This is not a motion for judgment on the pleadings (Code Civ. Proc. § 547; Ventriniglia v. Eichner, 138 App. Div. 274; Wayte v. Bowker Chemical Co., 180 id. 568), but the trial of a demurrer as a contested motion. (Code Civ. Proc. § 976.) The situation is analogous to a trial of a demurrer by a formal trial. (Id. § 977.) The failure to serve a cross-notice of trial does not prevent the court from completely disposing of a demurrer where both parties appear at the trial thereof and argue the points of law involved. And no good reason can be advanced for incumbering the trial of a demurrer as a contested motion by a useless requirement of a cross-notice of motion. Even if this court were irrevocably committed to a different rule where the demurrer is brought on for argument by way of motion for judgment on the pleadings, the continued confusion which that highly technical rule engenders is a very good reason for not extending it to the trials of issues of law as contested motions.
The order appealed from should be reversed, with ten dollars costs, and the demurrer sustained, with ten dollars costs. If the plaintiff is so advised, it may apply at Special Term, upon an affidavit setting forth facts showing merits, for leave to plead over.
Laughlin, Dowling, Page and Merrell, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with leave to plaintiff to move at Special Term for leave to plead over on payment of costs.