28 N.Y.S. 557 | New York Court of Common Pleas | 1894
Plaintiff, a member of Nelson Lodge, No. 64, Order of Sons of St. George, was elected its physician, pursuant to a provision of the by-laws of the lodge, as follows: “A legally qualified physician, who shall be an Englishman, shall be elected, and remain in office during the pleasure of the lodge.” The compensation was payable quarter-yearly. At a stated or regular meeting of the lodge held on November 28, 1892, upwards of 30 qualified. members being present thereat, it was resolved, by a majority vote, that plaintiff’s employment should be discontinued from thenceforth. This action was brought to recover compensation as such physician, and it was conceded that every part of the compensation claimed had accrued, if at all, subsequently to the adoption of the resolution above alluded to, and notice thereof to plaintiff. On the trial, plaintiff contended that his dismissal at a regular meeting was unauthorized, and that such dismissal could be effected only at a special meeting called for that purpose. Upon his successful issue from that- contention, plaintiff’s right to recover in this action was dependent. No ambiguity was apparent from the by-law under which plaintiff’s election was made; the words ''during the pleasure of the lodge” plainly having no other signifi
The trial justice, against the protest of defendant’s counsel, admitted evidence tending to show that it was the opinion of some of the officers of the supreme and grand lodges, to which Nelson Lodge was subordinate, that the physician was removable only at a meeting specially called for that purpose. This evidence was improperly admitted. Obviously, its sole office was to add to the by-laws,—not to interpret them. No ambiguity was apparent with reference to the by-laws in evidence. Their meaning was clear and precise. Granted, as respondent’s counsel contends, that, in case of uncertainty in the meaning of a by-law, the opinions of officers and members of the association may be competent in aid of interpretation, the proposition is irrelevant to the facts. So far as the by-laws in evidence extend; they appear to be definite and certain, beyond dispute. They do not even remotely sustain an inference of the probability' of an intention to subject the exercise of the right of the lodge -to dismiss its physician to the requirement of a meeting specially called for the purpose. It may be that it would have been wiser to have so provided, but with that we are not concerned, for upon no proper theory of interpretation can the latter be made to supply an omission to express a particular intention. For error in the admission of the evidence alluded to, the judgment must be reversed; and as, upon the conceded facts, plaintiff is not entitled to recover, in any event, the complaint should be dismissed upon the merits, with costs of this appeal, and of the court below, to the appellant.
By section 1, art. 30, of the by-laws of the lodge, its physician is to “remain in office during the pleasure of the lodge.” The plaintiff was removed by a majority vote at a regular or stated meeting of the lodge; and the question is whether such vote at such meeting be an expression of the “pleasure of the lodge.” None but an affirmative answer can be returned to the inquiry. The