| N.Y. App. Div. | Jul 1, 1899
The reasons given in his decision by the learned justice before whom this case was tried are amply sufficient to show the propriety of the judgment which he directed to be entered. We would not, therefore, deem it necessary to add anything to that decision were it not for the point made before us, which does not seem to have been adverted to by him, that the plaintiff had a remedy by appeal from the action of the'grand jury of the society in expelling it, and that it should have been compelled to exhaust that remedy in the society before resorting to the court for relief.
The claim of the defendant is that, by the constitution and by-laws of the society, an appeal lay from the action of the grand jury to the next convention of the society, and that whoever was dissatisfied with the verdict of the jury might have its action in rendering the verdict revised by the convention, which had authority to confirm it or set it aside. It is, undoubtedly, the rule in such cases that where the by-laws of the society afford a remedy by appeal from the tribunal to which is intrusted in the first instance the trial of members for offenses against the society, that remedy must be exhausted before the party claiming to be aggrieved will be heard upon an application to the courts to annul the action of the constituted tribunal of the society. (Poultney v. Bachman, 31 Hun, 51; Lafond v. Deems, 81 N. Y. 507.) But that rule will only be applied where the appeal given is such that, as a matter of ■right, the aggrieved party may review the decision of the subordinate tribunal. It is not sufficient to create a tribunal which has the power to annul or affirm the decision against him, but it is necessary as well that he should have the absolute right to appeal to that tribunal, and that such right should not depend upon the discretion or favor of any person for its exercise. Unless the procedure before the tribunal is such that the appellant of his own motion may come into that tribunal and bring the respondent there and have a hear
In this case we do not see that such a right of appeal is given. There is a provision for a trial before the grand jury, to which the power is given to make certain judgments after a trial before it. The only provision for an appeal is found in sections 33 and 34 of the by-laws of the supreme assembly. They provide that the verdict of the grand jury shall be unrepealahle until the next coming convention. Whoever is dissatisfied with the verdict of the grand jury may call the latter to account through any delegate present at the convention. The convention shall have the right either to affirm or annul the verdict of the grand jury. No other provisions are made for an appeal. The convention consists of a delegate from each one of the local assemblies and the chief officers of the supreme assembly. There is no provision anywhere in the by-laws that the appeal of any local assembly must be taken up by the convention, nor is it made the duty of any particular delegate to present such an appeal. If the local assembly had a delegate in the convention, it would, undoubtedly, be in a situation to present its case and have its appeal heard. But in the absence of such a delegate, no means are provided for an appeal, and whether it could obtain one or not would depend solely upon the favor of some person who happened to be a delegate. In this particular case, as the result of the punishment of expulsion, the plaintiff would have no delegate in the convention, and whether or not it could appeal depends upon whether some delegate of some other assembly should see fit to present its case and take charge of its interests upon the appeal. This clearly does not constitute such an appeal as would take away the right of the aggrieved party to resort to the courts for its protection.
The other objections taken to the judgment are sufficiently answered in the decision of the learned justice at the Special Term.
The judgment must be affirmed, with costs.
Barrett, Patterson and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.