228 A.D. 14 | N.Y. App. Div. | 1930
The judgment in this action, so far as material upon this appeal, contains the following provisions, in substance: The Order of Sons of Italy in America is a national fraternal order of which the grand lodge and district lodges in the various States are component parts and subject to the general supervision and control of a supreme lodge or governing body designated as a supreme lodge and a supreme council in which bodies alone rest the authority for the organization of a new lodge. This authority must be issued by the supreme council which alone has power under the constitution to grant charters to all lodges of the order. The grand lodge of the State of New York has and had no right to secede from the national order against the protest of individual members or constituent district lodges, and the grand lodge of the State of New York is still a subordinate lodge of the national order and subject to the constitution and legal by-laws of the supreme lodge. The grand lodge of the State of New York was instituted and organized under and pursuant to the constitution and general laws of the order, and at no time since its creation has it been an independent entity, and the corporation defendant organized by chapter 217 of the Laws of 1923 of the State of New
It is the claim of the appellants that substantially all of the affirmative provisions of the judgment are erroneous and that the complaint should have been dismissed. This contention is based upon the allegations of the complaint. The complaint itself is extremely voluminous, covering in the printed record 215 folios in addition to 552 folios of exhibits made a part of the complaint by reference. • The defendants assert that the complaint is based solely upon the theory that the corporation Sons of Italy Grand Lodge, Inc., is not a component part of the national order Sons of Italy, but is an independent organization, and that the relief sought by the complaint, based on wrongful acts of the corporation defendant and individuals and unincorporated associations affiliated therewith, is to restrain and enjoin the defendants from acting.as
When the trial was entered upon before the learned official referee, a broad field of controversy was opened, and among the controverted points was the general relationship between the defendant corporation and the national order, including the status of the so-called consolidated mortuary fund. We think it was within the scope of the litigation as fixed by the pleadings to determine that relationship, and we find no error in the conclusion of the learned official referee to the effect that the defendant corporation is a component part of the national order.
Subdivision 9 of section 1 of the act providing for the incorporation of the grand lodge of New York contains in an enumeration of powers, the following: “ To affiliate itself with another body or association, incorporated or unincorporated, as its parent body and to become a lodge or branch of such body in so far as the purpose and objects of such body are consistent with its own purposes and objects; and to discontinue such affiliation and sever connection with such body.”
The complaint alleges irregularity in the call for the New York city convention of 1925. We find it within the scope of the issues to determine the regularity of that convention as bearing upon the validity of the resolution adopted at that convention purporting to sever the relation between the grand lodge and the national order.
Where the judgment proceeded further and ordered the holding of a new convention and new elections and provided machinery therefor, it went beyond the limits outlined by the pleadings. It may be quite obvious that those elected at the illegally called convention in 1925 are not de jure officers, but that the acts of persons bearing the credentials of election at such irregular convention should be recognized as the acts of de facto officers when within the general laws of the order. It is certainly obvious too that a new convention and new elections should be held, but we do not find it within the bounds of the litigation as framed by the pleadings to determine these matters or when or how a new convention should be called and held or how delegates thereto should be elected.
The learned official referee was without power to order an extra allowance of costs. The motion should have been made at Special Term if an extra allowance was sought. (Civ. Prac. Act, § 1513; Ongley v. Marcin, 214 App. Div. 455; Pinsker v. Pinsker, 44 id. 501.)
The judgment should be modified on the law by striking out sections thereof numbered “ 6,” “ 9,” “ 10,” “ 11,” “ 12,” “ 13,” “ 14,” the last three lines of “ 15,” “ 16,” and by striking out the provision for an extra allowance of $2,000, and reducing the costs to $596.26, and by modifying section “ 8 ” to read as follows:
“ The action of the Grand Council of the State of New York in
All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Judgment modified on the law and as modified affirmed, without costs of this appeal to either party.