People ex rel. Ruman v. National Slavonic Society

129 N.Y.S. 603 | N.Y. App. Div. | 1911

Scott, J.:

The defendants appeal from an order granting, an alternative writ of mandamus.

It is, objected at the outset that the order is not appeal-able, and such is undoubtedly the general rule, because the alternative writ decides nothing, being in the nature of an order to show cause. (People ex rel. Levenson v. O’Donnel, 99 App. Div. 253.) It is manifest, however, that the rule is not of universal application. While an alternative writ decides nothing respecting the controversy between the parties, it does amount to an assumption of jurisdiction to pass upon that controversy, and when it appears that the controversy is one of which the court has no jurisdiction, an appeal from the order granting the alternative writ may properly be entertained. Otherwise the parties might he put needlessly to the trouble and expense of a litigation, and the time of the court uselessly taken up, with the result, at the end, that the court will decline to make any decision. The defendant is a fraternal beneficial corporation organized under the laws óf Pennsylvania. The relator, a former member, seeks by this proceeding to review his expulsion, which as it appears was the act of the central body, and not of a subordinate lodge or assembly. What the relator seeks to. do, therefore, is to invoke the aid of this court to reinstate him to membership in a foreign corporation. This is asking the court to reach out beyond its jurisdiction and to make an order which it would have nó power to enforce. This it will not undertake, to do. We have been referred to only a single case in which the Supreme Court in.this State assumed jurisdiction to entertain a similar proceeding against a foreign corporation, hut in that case the ground upon which the court acted was that the defendant corporation had virtually become a resident of this State by taking out a license to transact business, and actually transacting it, within this State. (Matter of Wilcox, 123 App. Div. 86.) Nothing of that sort appears here. It' does not appear that defendant has subordinate lodges within this State, and if relator’s complaint was that he had been expelled from a resident subordinate lodge, and his application was for a mandamus against that lodge, • a different question would be presented. But, as has been said, his allegation is that he was expelled by the parent non-resident corporatibn, and it is against that corporation that he asks for a mandamus. The order cannot be upheld under section 1780 of the Code of Civil Procedure, which, provides that “ an action against a foreign corporation may be maintained by a resident of the State or by a domestic corporation for any cause of action.’’ A proceeding for mandamus is not an action, but a special proceeding. (People ex rel. Field v. North. Pacific R. R. Co., 50 N. Y. Super. Ct. 456.)

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred. *

Order reversed, with ten dollars costs and disbursements, and' motion denied, with ten dollars costs.