Fischer v. Raab

| New York Court of Common Pleas | Jan 15, 1879

J. F. Daly, J.

In case of violent dissentions and irreconcilable differences between the members of a voluntary association, judgment will be rendered at the suit of one or more members against all the others dissolving the society (Lafond agt. Deems, 52 How., 41). But no action will be entertained for such a purpose upon mere proof of differences of opinion, bad temper, the ordinary disputes common to such societies; nor upon proof of injuries, or injustice sustained by one member, through the action or vote of the society if he have another remedy.

In the case of the society now before the court, the constitution provides that it shall not be dissolved so long as five members favor its continuance. Such provision is controlling in an action to obtain a decree of dissolution, and if five members oppose a dissolution when the vote is put in the society, or if there he no vote when the action is commenced, dissolution will not be decreed.

The members must be held to their contract, as expressed in the constitution, by-laws or rules of their society (White agt. Brownell, 2 Daly, 329). This society was never dissolved under the provisions of its constitution. On April 28, 1878, a resolution was adopted, “that from to-morrow (Monday), the twenty-ninth of this month, this association make no more payments, the meetings be suspended, but, as soon, however, as the bank makes payments, the secretary shall, through notice, call the members respectively to the present meeting room. The whole money of the association shall be equally divided between all seventy-eight members, after deducting ” (the debts to sick members and other expenses). “As without doubt, the defunct bank will make different payments in installments, so the money shall be divided and payments continued respectively in the manner designated. On the last payment and the repective divisions, the complete dissolution shall be permanently decided. The several boobs and documents will, for the present, remain in the possession of the usual officers. The sum of six dollars and forty-eight cents still in the hands of the treasurer, the full extent of the money shall be paid to brother Mangold.”

These resolutions were induced by the failure of the bank in which the society kept its funds. Leaving the question of “complete dissolution” to be decided at a future time, the members voted to divide the funds, when obtained, among themselves.

Had plaintiff asked for an injunction to restrain that distribution, he might have been heard, but his action was commenced after the members had got together again and voted to contmue the society and to revoke the previous resolution.

This last vote was taken in a regular quarterly meeting day of the society, held on May 6, 1878, at the rooms of the society; a majority of the members then and there assembled, pursuant to a call, to form a new society, but finding themselves together, after some deliberation, voted to revoke the former resolution and to continue the society. As to all members not present at that meeting or at subsequent ones, down to the general meeting of August 5,1878, the proceedings prior to the latter date and after April 28,1878, were doubtless ineffectual for want of notice of meeting as prescribed by the resolution of April twenty-eighth. But the plaintiff was present and took part at such irregular meetings, and at the first of them, that of May 6, 1878, himself moved the resolution to revoke the vote of suspension passed April twenty-eighth. Finally, on July 15, 1878, the secretary sent a notice to every member of the association of a regular quarterly meeting on August 5,1878. This notice set the society going again and it has proceeded regularly since. No dissolution has been attempted and no motion made on the footing of the suspension resolution of April 28, 1878.' So far as plaintiff is concerned I regard him as estopped by his action at the meeting of May 6, 1878, from objecting to the regularity of that or subsequent meetings on the only ground on which he could object, namely, that a regular notice thereof had not been given pursuant to the suspensary resolution of April twenty-eighth. His right to enjoin the society or the other members is gone because of his participation in the proceedings he complains of, such proceedings not being improper in themselves, not subversive to the objects for which the association was formed, but, on the contrary, directly intended to accomplish and perpetuate its charitable and useful objects.

,k The plaintiff complains, however, that he was unjustly stricken from the roll of members for alleged default as to dues. Even if he were, such injustice affords no ground for paralyzing the society by in junction until his wrong is righted. It may be that the court will entertain his complaint to do him justice on that point if a wrong has been committed, but manifestly he has no right to injunction. This view applies to all the defendants who join in plaintiff’s prayer because of their expulsion for non-payment of dues.

So far as any of those defendants join in plaintiff’s prayer for an injunction because of the want of notice to them of meetings between April twenty-eighth and August 5, 1878, their rights and liabilities for want of such notice may be the subject of such decision on the trial, but they are not entitled to enjoin the society since the regular notice was given for the meeting of August 5, 1878.

The report of judge Dinkel, on the question of fact submitted to him, should be confirmed. The objections are not substantial. It would be unusual if with the fatiguing and unpleasant task he has had to perform he should have been able to avoid occasion for criticism, but his report seems to be justified by the evidence in every particular.

Injunction dissolved, with ten dollars costs. Report confirmed and motion for new hearing denied, with ten dollars costs.