87 A.D. 478 | N.Y. App. Div. | 1903
By final orders, from which this appeal is taken, the relator was granted a peremptory writ of mandamus restoring him to membership in the “ Old Guard ” of the city of Hew York and assessing damages sustained by his alleged illegal expulsion from that organization. The final orders were made after a trial upon an alternative writ.
The relator was a life member of the “ Old Guard,” by which is meant that having paid a certain gross sum he was thereafter exempt from the payment of any further annual dues. His relation to the “ Old Guard,” except in that respect, was the same as
When the relator became a member of the “ Old Guard ” he subjected himself to the control of the provisions of the Constitution and by-laws. On the 31st of October, 1902, he was charged with the commission of a grave offense, namely, that he had falsely accused the commanding officer of the “ Old Guard ” with the theft of twenty dollars. The charge was formulated in the following words:
“ To the Board of Officers of the Old Guard:
“ I hereby charge Henry H. Brewster, a member of the Old Guard, with conduct unbecoming a soldier and a gentleman, and to the prejudice of good order and military discipline, in that he falsely charged S. Ellis Briggs, Major of the Old Guard and Commandant, with having received and appropriated to his own use, certain moneys, to wit, the sum of Twenty dollars ($20) falsely pretended and claimed to have been paid by him, said Brewster, on March 18th, 1901, to the said S. Ellis Briggs, Major and Commandant, as aforesaid, for the amount of a certain subscription, made by him, said Brewster, to the Old Guard, for the expenses of the anniversary dinner and celebration held in April, 1901. Dated, Hew York, October 20,1902.
“ DAVID H. LIGHTER STEIR,
“ lieutenant G. Company.”
The relator was notified of this charge and a time was appointed for a hearing thereon. He attended in person and by counsel, was. arraigned and pleaded not guilty. He was asked if he objected to being tried by any member of the board, to which he responded, “ I do not.” The trial then proceeded, and at its conclusion the relator was found guilty of the charge, and the board recommended that he be expelled from the organization. The testimony taken at
The proceedings of the meeting of the board of officers held on December 29, 1902, providing for the resubmission of the recommendation to the organization at a regular meeting to be held on Tuesday evening, January 6, 1903, appear in the record. The court below, therefore, had before it the whole history of the action of the Old Guard with respect to the expulsion of the relator. It had the charge made against him; the. trial of that charge before the board of officers; the way in which that body was constituted; the evidence taken before it; the findings of the board of officers; their recommendation; its unauthorized submission at an assemblage of members which was not a regular meeting; the recognition of that irregularity and insufficiency by the resubmission of the findings and recommendation at a regular and duly authorized meeting of which the relator was properly notified, and the action taken thereupon before the return day of the alternative writ. .
Upon that statement of the case there are two questions presented for consideration. The first has reference to the constitution of the board by which the relator was tried. It is urged that it was improperly constituted, because it was in part composed of persons who, if not actually hostile to, were biased against him. It is plain that the objection does not apply to the board of officers as a whole. There was no other body which, under the. constitution of the organization, could act as a tribunal to investigate charges against
The gist of the relator’s objection is that he was not tried by a tribunal fairly constituted. The charges' against him were signed by Mr. Lichtenstein; not as an individual, but in his capacity as lieutenant of one of the companies composing the Old Guard, and in compliance with the requirement of the resolution above quoted. He was one of that board of officers. Another member of that board was Lieutenant Ward, who previous to the trial, it is said, had told the relator that he must resign ór be expelled. Lieutenant Ward did
A second subject is presented for consideration, and that is the irregularity of the meeting of November 11, 1902, at which the recommendation of the board of officers was first adopted. As before remarked, every thing, that was done at that meeting respecting the relator’s cause was irregular and ineffectual and utterly void, and if the matter stopped there the relator would be- entitled to reinstatement; but this irregularity, substantially admitted by the respondents, was cured at the January meeting of 1903. The action of the board of officers remained valid. It was the adoption by the body of the organization that was alone void. The proceedings of the'January meeting, which were had after due notice to the relator, are all referred to in the answer of the respondents, and testimony with respect to those proceedings thus set up in the answer as new matter was given upon the trial of the alternative writ and forms part of the record now before us. There can be no question, therefore, of the sufficiency of the plea of new matter. It appeared that the irregularity and infirmity of the relator’s expulsion was cured at a regular meeting duly called, of which the relator had due
It thus being made to appear that the expulsion of the relator, ultimately, was duly made at a regular meéting of the organization, the proceeding should have been dismissed.
The. final orders should be reversed, with ten dollars costs of the appeal and printing disbursements, and the motion for a mandamus denied, but inasmuch as at the time the motion was made the relator may have been entitled- to the writ and his right is defeated by new matter arising after the writ was issued, the denial of the motion should' be without costs.
Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., concurred.
Orders reversed, with ten dollars costs of appeal and printing disbursements, and motion for mandamus denied, without costs.