134 N.Y.S. 1043 | N.Y. Sup. Ct. | 1912
The action is to enjoin and restrain the defendant from interfering with the rights and property of the First Neustadter Congregation Sick & Benevolent Association in any manner whatsoever, from using the name and seal of the said congregation, and from selling and disposing of or incumbering the property of the same, be it real or personal, and from disturbing the meetings
The amended complaint alleges that the First Neustadter Congregation Sick & Benevolent Association is a voluntary association, consisting of seven or more members and organized for religious worshiping and benevolent purposes; that the plaintiff is its duly elected president; that the defendants are members of the congregation; that the congregation .is the owner of certain personal property, consisting of scrolls, prayer books, prayer shawls, a- congregation seal, and other paraphernalia, books and papers, and real property, consisting of burial grounds for- the burial of members of the congregation and their families; that in order to disrupt the organization, and to appropriate its valuable property and rights, the defendants have conspired together and threatened to and did perpetrate certain unlawful acts, viz.: First. That the defendant, Abraham Stubenhaus, and his accomplices, held several meetings in the month of January, at which, by intimidation, threats, and physical force, they declared themselves elected officers of the congregation, in spite of the fact that no nomination nor election was held at Such or any other meetings. Second. That the defendants took the personal property of the congregation and placed the same in the house of the defendant, Abraham Stubenhaus, and threatened to sell the same and to appropriate the proceeds to their own use and benefit. Third. That, contrary to the provisions of the by-laws of the congregation that the burial grounds owned by it should be used only for the burial of its members and their families, the defendants threatened to sell and give away plots for graves in the said burial grounds, and threatened to give permission to persons other than the members of the congregation and their families to be buried therein.
The answer of the, defendant Stubenhaus, by its failure to deny, admits the allegations of the amended complaint as to the congregation being a voluntary association, and that the defendants were members of the congregation at the times alleged in the amended complaint. The answer in effect denies the other allegations, of the amended complaint, and alleges, as a separate and distinct defense, that the plaintiff, Jacob Goller, is not, and at the time of the commencement of the action was not, the president or treasurer of the voluntary association referred to in the amended complaint, and that the congregation is not and was not at any time a body corporate and has no legal capacity to sue. The answer, for a second separate and distinct defense, alleges that at all the times mentioned in the amended complaint" the defendant was and still is a member of a certain voluntary association known as the First Neustadter Congregation Sick & Benevolent Association, which is composed of more than seven members, and which the defendant believes is the voluntary association referred to in the amended complaint, and that at no time prior to or since the commencement of the action was any resolution adopted by the members of the voluntary association, or by a majority of them, authorizing or empowering Jacob Goller, hereinabove named, or any other person or persons, to institute or maintain this action; nor has the institution or the maintenance of this action been
It is very much to be deplored that an association organized for the very worthy purposes above stated should be torn by internal dissensions. So far as I can gather from the evidence, when the troubles arose in January, 1909, the congregation had but 16 members in good standing and only $43.29 in cash in its treasury. Although the congregation owns a plot in the Mt. Zion Cemetery for the burial of its members and their families, the purchase price thereof, viz., $510, has not been fully paid, there still remaining due and unpaid installments and interest amounting to $247.87. • Notwithstanding all this, the members of both factions are disinclined to adopt the suggestions offered by me that steps be taken to incorporate the congregation under the Religious Corporations Law, or, if the members did not favor its incorporation, that an election of officers be held in the near future. T regret exceedingly that all efforts to reunite them have been unavailing.
“An action or special proceeding may be maintained by the president or treasurer of an unincorporated association, consisting of seven or more persons, to recover any property, or upon any cause of action, for or upon which all the associates may maintain such an action or special proceeding by reason of their interest or ownership therein, either jointly or in common. An action may likewise be maintained by such president or treasurer to recover from one or more members of such association his or their proportionate share of any moneys lawfully expended by such association for the benefit of such associates, or to enforce any lawful claim of such association against such member or members. An action or special proceeding may be maintained against the president or treasurer of such an association to recover any property, or upon any cause of action for or upon which the plaintiff may maintain such an action or special proceeding against all the associates by reason of their interest or ownership or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership or other company of persons w'hich has a president or treasurer is deemed an association within the meaning of this section.”
“Officers may be elected, in the manner prescribed in the constitution of the association or the by-laws, in pursuance thereof, and not legally otherwise, unless it so happens that no such provision has been definitely made, in which case usage may be allowed to furnish a provision or a practical interpretation of an indefinite one.”
“It was resolved by all the members that all the old officers continue in office until the 1st day of July, 1909.”
Freedman was not called as a witness upon the trial; it being undisputed that he was in Europe when it took place. The plaintiff claims that the minutes of such meeting were not written by Freedman, but by some third person subsequent to the meeting. If the testimony of the witnesses called by the plaintiff be given any credence whatever, such minutes are wholly at variance with the actual occurrences of the evening in question. The plaintiff claims that at such meeting he and his followers demanded of the defendant Stubenhaus, as the presiding officer, that the congregation proceed to the nomination of candidates for the various offices, which, the plaintiff and his witnesses testified, the said defendant refused to do, and they further testified that no, election of officers took place at the meeting of January 16th, which was held in the defendant’s apartments, and that when at a subsequent meeting, viz., on Janus^y 30th, which was also held in the defendant’s apartments, the minutes of the preceding meeting were read, they protested against that part which stated that it was resolved that the old officers be continued in office until the 1st day of July, 1909, for the reason that no such resolution was ever offered or adopted. They claim that their protest was unheeded, and that the defendant Stubenhaus acted so arbitrarily that at the close of the meeting 7 members united in a request to call upon the vice president, Louis Klein, to call a special meeting for February 3, 1909. There was an attendance of 8 members at such meeting, at which the plaintiff was elected president, and others were elected,to the various other offices of the congregation, as will hereafter more fully appear.
According to the receipt book of the financial secretary in office on January 16, 1909, 10 members attended the meeting of that date. Of these, 5 attended the special meeting at which Goller claims to have been elected president. There is sufficient evidence in the case to warrant a finding that the only members who attended the meeting of January 16th were those who paid their dues on that day. The probabilities are, therefore, that,, had a resolution been offered to continue the defendant Stubenhaus in office, it would have been opposed. As seen, he was opposed at the preceding election, and, as shown by subsequent events, those who were opposed to him had not become reconciled when the time for the election of .new officers arrived. In view of all this, I do not think that a resolution of the character claimed was either introduced or passed'at the said meeting of January 16th. Having thus shown that the defendant Stubenhaus was not re-elected at the time he claims he was, the claim of the plaintiff to the presidency of the congregation will now be considered.
“The by-laws of the congregation provided that in the event the president refuses to act, or acts illegally, the vice president takes the president’s chair and acts in his stead. The same by-law further provides for the calling of a special meeting to complete or finish the business remaining unfinished by the president.”
“Three meetings were called in January, 1909, for nomination and election of officers. The defendant refused to proceed with the election, indeed with an orderly transaction of business, driving the members from the place. The proper and legal remedy was to call a special meeting and complete the unfinished work—have third nominations and election—and that was done.”
The defendant’s witnesses denied that such a by-law or rule was ever adopted. After examining the minutes of meetings, I am unable to find therein any mention or entry of the adoption of any resolution or motion of the character claimed, and I reach the conclusion that none was ever adopted or passed. Even if such a resolution was passed, the proof fails to show that a demand was ever made of the defendant Stubenhaus-to call a special meeting and that he refused to do so. Moreover, it appears from the minutes of the special meeting that it was not called, as claimed, to complete or finish unfinished business, but for an object stated as follows:
“Neglect of duty on the part of the president towards the society.”
“In the absence of a definite provision concerning the term of office, an officer holds his position merely at the pleasure of the association, and may be rempved without either cause or notice, though where such provision exists it is controlling.”
Since the tenure of office of the officers of the congregation was fixed, their removal or attempted removal, as gathered from the minutes of the special meeting, and as hereinafter shown, was wholly unauthorized. The minutes of the special meeting of February 3d, after reciting the objects of the same as above set forth, contain the following:
“Whereas, the president was called upon by the brothers to appear at a special meeting, and he failed to come, a motion was made by Brother Reiss to have election of officers, and an election took place. Brother Goller was unanimously elected president by all present brothers; Brother Reiss was unanimously, by all brothers, elected vice president; Brother Gottfried was unanimously elected recording and financial secretary, and Brother Schwartz was elected unanimously cashier; wherewith brother chairman closed the elections. Then Brother Eisenhandler made a motion that the chairman appoint a committee to visit the ex-president, that the latter return the congregation’s property to the newly elected officers. The committee consisted of Brothers Gottfried and Eisenhandler. Thereupon Brother President Goller closed the meeting in peace and harmony.”
It will be seen from the foregoing recitals that the defendant Stubenhaus is recognized as the president of the congregation, and that because he failed to appear a new election, not only for president, but for the entire board of officers, was held. I do not think that the members who attended the special meeting had a right to take such action, and it cannot be justified, even upon the theory that a majority is entitled to control.
Taking up, then, the consideration of the evidence relating to the various controverted allegations of the complaint in the order in which they are stated, I find that the plaintiff is not, as claimed, the duly elected president of the congregation; that the defendant Stubenhaus and his associates continued in office in spite of the fact that no resolution to that effect was offered or adopted; and that the defendants did not conspire to acquire and appropriate to their own use the property of the congregation. The minutes of the meeting of January 30, 1909, state that “a resolution was passed by all the members that the cemetery plot and all other property which this society possessed should be sold.” As the passage of such resolution is disputed by the plaintiff and his faction, the defendants should be restrained from selling and disposing of such property until the views of the members relating thereto can be ascertained at a meeting, regular or special, upon due notice to all the members, which notice should state the objects of the meeting. As to the removal of the religious articles above mentioned by the defendant Stubenhaus to his apartments, I am satisfied that they were removed in good faith, after conferring with memhers of his faction, with a view of saving the expense of storing them after the expiration of the lease of the hall in which the congregation
It results from the foregoing views that the plaintiff is entitled to judgment restraining the defendants from selling or disposing of any of the property of the congregation, including the cemetery plot. All de facto officers, as well as all others claiming office by virtue of the alleged election of February 3, 1909, having in their possession any moneys, or minute books, or books of account, or any property of the congregation, will also be restrained from paying out or disposing of the same until officers of the congregation are regularly elected and have qualified and can take possession of such property. No costs will be awarded. Let requests for findings in accordance with the views above expressed be submitted, with proof of service.