155 N.Y.S. 438 | N.Y. App. Div. | 1915
The relator seeks restitution to membership in a trade organization known as the Brotherhood of Painters, Decorators and Paperhangers of America. This is a foreign corporation operating extensively throughout the United States, acting in each State through local unions which, in this State, are unincorporated organizations. That the relator was improperly expelled from the brotherhood and that he has unsuccessfully pursued all the means of redress afforded him within the organization is not to be questioned and the verdict to that effect was amply warranted.-
The appellants, however, insist that the mandamus will not lie against the brotherhood, because it is a foreign corporation, and will not he against the local unions, who are also made defendants, because they are unincorporated.
Neither objection is well taken. The brotherhood has assumed to come into this State to pursue the objects of its incorporation, and cannot deny the jurisdiction of our courts to scrutinize its action, and to afford redress for a wrong done to a resident within the State. (Matter of Wilcox, 123 App. Div. 86.) The fact that the brotherhood has failed to file the necessary certificate to do business within the State cannot be interposed by it as a shield against proper supervision.
As for the local district unions, while mandamus might not lie against them alone, they act in this State as the agents of the brotherhood, and for that reason are properly joined as defendants in- this proceeding, because it is they who will be compelled to act in order to make the writ against the brotherhood effective. The relator has recovered what the jury deemed to be fair damages for the injury done him by his illegal expulsion. The recovery of such damages is authorized
The proceedings leading up to the judgment appealed from were irregular, in that the justice who presided at the trial of the issues of fact himself issued the mandamus, instead of certifying the verdict of the jury back to the Special Term as is the proper practice. Furthermore no final order was made directing the issue of the writ of peremptory mandamus.
For these purely technical errors, we might remit the cause for more formal proceedings, and in the past should have felt bound to do so. (People ex rel. Geraci v. Italian Assn. St. Bartholomew, 123 App. Div. 277.) The power and duty of this court to disregard technical errors and defects has been much extended recently (Code Civ. Proc. § 1317, as amd. by Laws of 1912, chap. 380), and this appears to be a proper case to exercise the power. The relator has a mandamus and a judgment, to both of which he is entitled. Thus a correct result has been obtained, and it is of no consequence that informalities can be found in the steps leading up to a proper result.
The judgment and order appealed from are affirmed, with costs.
Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Judgment and order affirmed, with costs.
