129 N.Y.S. 173 | N.Y. Sup. Ct. | 1911
This is a motion for an injunction pendente lite, restraining the defendant from trying and expelling the plaintiffs, who are members of the Exchange. The" numerous acts set forth which it is desired to have enjoined may be divided into two classes:
First. The restraining of any and all proceedings against the plaintiffs on the complaint made against them.
Second. Restraining the- commission of acts during the progress of the proceeding which the plaintiffs claim are contrary to law or contrary to their rights under the rules of the Exchange.
“ It is elementary that one who joins an organization like the New York Cotton Exchange, even though his mem-1 bership carries property rights, voluntarily subjects himself to its constitution' and by-laws. If he is guilty of misconduct, whose penalty is expulsion, according to their provisions, he cannot complain if expelled, provided the procedure is in accord with those provisions, no matter how greatly he may be damaged.” Quentell v. N. Y. Cotton Exchange, 56 Misc. Rep. 150, 153. In this case we find that the procedure preliminary to the trial of the charges was regularly conducted, and the matter was thus brought before the properly constituted and duly authorized body for trial. The plaintiffs contend, however, that the offense with which they were charged was one that the committee of the Exchange did not have jurisdiction to try. The complaint, in brief, is that one Rothschild employed the plaintiffs as his brokers to sell for him 5,600 bales of spot cotton; that he instructed them to sell the same to spinners only, for actual consumption, and under no circumstances to permit the cotton to be used for redelivery on contracts; or, in other words, not to be sold or delivered on contracts for future delivery made upon the Exchange. The complaint then states" that plaintiffs accepted the employment and "subsequently stated to Rothschild that they had sold his cotton in accordance with these instructions, and they gave him a general statement of account with reference to it; that Rothschild thereafter learned that the cotton had not been sold to spinners for actual consumption only, but had been rede
The plaintiffs claim that they have been deprived of the possibility of a fair trial, because they have been refused the right to appear by counsel. The by-laws are silent on the subject of counsel. Plaintiffs cannot, therefore, claim that they have been denied a right that is expressly given. In Green v. Board of Trade, 174 Ill. 585, the question was directly presented, as the by-law of the Board of Trade under consideration provided: “ In investigations before the board of directors or any committee of the association, no party shall be allowed to be represented by professional
This reasoning would appear to be sound; and, had the by-law to which the plaintiffs assented in this case contained a similar provision, I would have no hesitation in following the decision. The plaintiffs have not assented to a trial without the aid of counsel; and, when we consider the serious consequences which would follow the. plaintiffs’ expulsion, if such should be the outcome of these proceedings, I feel that the plaintiffs should have every opportunity, consistent with the by-laws, of defending themselves. They have the right to be confronted with the witnesses produced against them, and to cross-examine them, and to produce evidence on their own behalf. To one uninstructed in the art of examination and cross-examination of witnesses, and in the weight, competency and sufficiency of evidence, the services of trained counsel are of inestimable benefit; and, to those of us trained under the common law, seems almost a necessary part of any proceeding of a judicial nature, where a person’s property, honor and business integrity are at stake. This question has not been directly determined in this State, but Justice Barrett intimated, strongly, that such would have been his decision had the question been properly raised. In Gebhardt v. N. Y. Club, 21 Abb. N. C. 248, 252, he said, as to the denial of the right to counsel: “ The plain
Courts of equity do not stop proceedings of this nature in limine and determine in advance questions that, although apprehended, may not arise. The plaintiffs must exhaust their remedy within the Exchange first. The case of Quentell v. N. Y. Cotton Exchange, 56 Misc. Rep. 150, is not an authority for enjoining proceedings regularly brought pursuant to the by-laws. In that case, the Exchange was proceeding arbitrarily and contrary to its by-laws, and the court properly restrained it from continuing its proceedings. But, in this case, the Exchange, through its appropriate committee, has begun proceedings concerning a matter within their jurisdiction and must be allowed to continue. The plaintiffs should appear on such date as may be hereafter set for the hearing with their counsel; and, if they are not accorded a fair and impartial hearing, and' the board of managers should act thereupon and expel the plaintiffs, they have a full and adequate remedy in the right to have a judicial review of the proceeding.
Motion will, therefore, be denied, with ten dollars costs. Settle order on notice.
Motion denied.