223 A.D. 158 | N.Y. App. Div. | 1928
The petitioners sought at Special Term a peremptory order of mandamus to compel the defendants to turn over to petitioners, as the duly elected officers of a fraternal union, all books, records, papers, funds and securities belonging to the union. The defendants interposed a return in which they attempted to put in issue the material allegations of the petition by denials upon information and belief, supplemented by affirmative allegations of fact. The defendants urge,,, as a first defense, that there are issues of fact to be tried and hence a peremptory order of mandamus may not issue, and this was the view of the learned court at Special Term. It appears, however, upon this record that there are no issues of fact in dispute. In such a case where positive allegations -are contained in the moving papers and it clearly appears that -only questions of law and not of fact are presented for determination, and the right to & peremptory mandamus otherwise exists, :such right cannot be thwarted by mere denials upon information and belief which raise no substantial issue. (People ex rel. Kelly v. Common Council, 77 N. Y. 503; Eyre v. Wood, 203 App. Div.
Having thus shown that none of the defenses urged by the defendants against an order of mandamus as not being the proper remedy, are tenable, we are brought too a consideration of the real controversy between the parties. The defendants urge that the convention of this fraternal order adopted a resolution providing that a quorum should consist of three-fourths of all the elected delegates and that when the seceding faction departed, a majority coxxld not legally do any further business; hence the election of the petitioners by a majority vote was void. Aside from any question as to the validity of such a resolution, if construed as contended for by the defendants, a complete answer to this contention is that the resolution in question only provided that a quorum of three-fourths of the elected delegates was necessary before a session of
“ (3) Before a session of this convention can be called to order, a quorum of three-fourths of all elected delegates is necessary. * * *
“ All important matters or reports of committees, etc., will be done by roll call and will be decided by a majority.”
By the express wording of this resolution it is only provided that a quorum of three-fourths of all the elected delegates shall be present before the convention can be called to order, and thereafter expressly provides that all important matters shall be decided by a majority. This unusual number for a quorum is confined solely to the opening of the session. The election of the new officers was one of the most important acts to come before the convention and, when the minority voluntarily departed, the majority was well within its rights in proceeding to elect the officers and there is nothing in this resolution which hampers the inherent right of a majority to proceed. (Cushing’s Manual, sec. IV, rule 24.) The normal right to proceed lies with a majority and any departure from this must be construed with this fact in mind.
It follows that the order appealed from should be modified by granting a peremptory order of mandamus and, as so modified affirmed, with ten dollars costs and disbursements to the appellants.
Dowling, P. J., McAvoy, Martin and O’Malley, JJ., concur.
Order modified by granting a peremptory order of mandamus, and as so modified affirmed, with ten dollars costs and disbursements to the appellants. Settle order on notice.