32 N.Y.S. 415 | N.Y. Sup. Ct. | 1895
This is a certiorari to review the action of the respondent, which suspended the relator from membership for one year. We are met at the threshold of the case by the objection that certiorari will not lie. The action of a corporation in removing or suspending a member is doubtless, in one sense, judicial or quasi judicial. But we know of no authority for the proposition that the act of expulsion is to be treated as a judgment of a legal tribunal, to be reviewed as such by a certiorari. There are many cases where members have been expelled from corporations, but the remedy taken has always been mandamus or action. Ang. & A. Corp. § 704; People v. Union, 118 N. Y. 101, 23 N. E. 129; Loubat v. Le Roy, 40 Hun, 546. This is also true of amotion from medical societies. People v. Medical Society of Erie Co., 24 Barb. 570, and People v. Medical Society of Erie Co., 32 N. Y. 187, were cases of mandamus. I can find no reported case where certiorari had been issued to review the action of a corporation expelling or suspending a member. The nearest approach to it is an old case (Groenvelt v. Burwell, 1 Ld. Raym. 454), where it was held that certiorari would lie to review the action of medical censors in disciplining the plaintiff. The censors seem to have been granted some special statutory power, and under it they fined the relator, and committed him to jail. That certainly partook of the nature of a legal judgment. The power of a motion exists in corporations of the character of this respondent. The power must doubtless be exercised according to the by-laws of a corporation and the rules of natural justice, and the grounds for such action must be reasonable and lawful. The member proceeded against must have a fair hearing. Put there is no power in the corporation to take legal testimony, nor are any particular formalities to be observed other than those required by the bylaws of a corporation. Such proceedings can hardly have sufficient semblance of judicial form, or present a sufficient record, for the courts to review on certiorari. A further objection to the issue of the writ is that the relator is given by statute (chapter 445, Laws 1866) an appeal to the Medical Society of the State of New York. The relator should have invoked such an appeal for redress, before resorting to the courts. Thomas v. Union, 121 N. Y. 45, 24 N. E. 24. The writ should be quashed, with §10 costs and disbursements. All concur.
