160 N.Y.S. 907 | N.Y. Sup. Ct. | 1916
March 29, 1916, Miss Reed, the petitioner, was the grand regent of said Court Utica No. 1 of the Daughters of Isabella, and had been a member in good standing therein for more than 12 years, it being a subordinate court of the National Order of the Daughters of Isabella, which is a membership corporation organized and incorporated under the laws of the state of New York, having its principal office at Utica, N. Y., and its principles are to promote the social and intellectual standing of its members, literary purposes, and the rendering of such aid and assistance among its members as shall be desirable and proper, and by such lawful means as shall seem best.
On the 20th day of March, 1916, the supreme regent of the national order preferred charges against Miss Reed, and subsequently a trial thereof was had before ten members of the national board of directors and officers of said national order, which resulted in five members of such trial body voting to sustain the charges and expel her from the order, two in the negative, and three not voting. The charges preferred were somewhat general in form, but finally resulted in two definite accusations, viz.: (1) The action of Court Utica No. 1 in removing Catherine N. Kelly as trustee and electing a successor to her, and in continuing to recognize and sustain such successor after notice from the national board of directors that the appeal of said Catherine N. Kelly had been sustained by that body; (2) the proceeding of said court in directing its treasurer to refuse to comply with the request of Katherine M. Rosney, state regent, to send its books, warrants, and vouchers to Poughkeepsie, N. Y., for examination.
Involved in these two specific charges is the part Miss Reed, as grand regent, took to bring about and sustain the doings of her court in that regard, and she is charged with willful insubordination and a contempt of the superior authority of the national board of directors in connection therewith. She claims such expulsion was illegal; that five members of such tribunal had no power under the facts and law to deprive her of a membership in this organization and take from her the property rights which she owned therein, a mortuary fund being connected with the order. See Constitution, Laws, and Rules, § 108.
That she could control the vote of the court upon such a question cannot be successfully urged. That Court Utica No. 1 acted within the scope of the laws and rules of the National Order (section 102), which provides that “any officer of a subordinate court absenting herself for three regular meetings in succession, unless excused by a majority vote of her court, shall forfeit her office,” when it declared Mrs. Kelly’s office forfeited, appears reasonable, particularly so when she had been absent for six regular business meetings in succession and refused to present an excuse when given an opportunity. The majority vote of her court had the power to excuse the forfeiture; hence power may be inferred to declare it.
The national board by the affidavit filed herein takes the position that:
“The national body has always held that the only remedy which a local court had under section 102 of the laws of the order was to certify and declare the fact that any officer named had been absent from three successive meetings and to ask the national body to declare the office vacant, and the appeal of said Catherine N. Kelly was the first appeal on just that point to come before said board of directors, and said board of directors have never accepted or sustained or maintained the right or authority in any local court to remove any member from office or expel any member for any cause whatever, except for nonpayment of dues.”
Granting that position to be correct, that it was a matter within the jurisdiction of the national body, yet, without a positive rule of action to guide the subordinate body, its members might well understand conscientiously that the power was vested in them to declare an office vacant, especially where there had. been six successive unexcused absences and a subsequent refusal to explain them. In Brendon v. Worley, 8 Misc. Rep. 253, 28 N. Y. Supp. 557, it was held:
“Where there is no ambiguity in the by-laws of an association, but their meaning is clear and precise, opinions of superior officers of the order with which it is connected as to their meaning a,re inadmissible.”
The opinion of the superior officers in the case at bar cannot control in the matters under consideration. Assuming that they are right in their conclusion that it was a matter for the national body to determine, that certainly does not give the power to expel a member in good standing for taking part in or sustaining the vote of the subordinate order, especially when there are not only personal but prop
Assuming all the facts claimed on the part of the national advocate to be established, and inferences to be drawn therefrom, together with the uncontroverted allegations of the petition, affidavits, and records submitted in reference to the charge as to the forfeiture of Mrs. Kelly’s office, and the subsequent proceedings in regard thereto, no sufficient or legal reason is established thereby to justify Miss Reed’s expulsion.
This court has a membership of nearly 400, and Miss Reed as grand regent thereof cannot be said to have the power to arbitrarily control the action of that number of individuals; she was not responsible, so far as the records disclose, for the act of the court. Whether its determination was right or wrong it is not necessary to discuss here; upon Mrs. Manion’s resolution the vote to withhold the books from transportation to Poughkeepsie was 190 to 9.
It may be said, however, that the language of subdivision 2 of section 51 of the laws and rules of the National Order defines the power of the district or territorial deputies, and which under subdivision 3 of section 50 is likewise made the power of a state regent. It is simply enacted that they shall “inspect the books, vouchers and accounts of courts within the district and may at any time demand them for examination.” It does not provide, as does subdivision 2 of section 38, which defines the duty of the committee on finances and audit, that they “shall be entitled to the possession thereof and all officers shall deliver the same to them.”
It will be observed by the above that the state regent is empowered to inspect the books and may demand them for examination. It does not provide that the grand regent of the subordinate court shall assume the hazard, risk, or duty, if you choose, to forward such books or records to another part of the state. It is very probable that this could have been done and without serious chance, but a failure or refusal to do so by the subordinate court does not in my opinion penalize the grand regent to the extent of expelling her from her court and depriving her of rights of membership and property therein. A contrary construction of the laws and rules of the order would be a harsh, unreasonable, and unwarranted one.
Therefore, assuming to the petitioner the fullest power within the possible latitude of the language of the laws and rules of the or-.
It has been held that refusal of a treasurer in Journeyman Stone Cutters’ Association to surrender his books and papers to a special committee appointed to investigate a certain bill or account, when by the by-laws he was only required to surrender his books arid papers to the trustees to be audited, or to be delivered to his successor, was not sufficient ground for suspension of membership. Connell v. Stalker, 21 Misc. Rep. 609, 48 N. Y. Supp. 77. The presumption is against the power to expel because it is in the nature of a forfeiture, which, as stated above, the law does not favor. White v. Brownell, 4 Abb. Prac. (N. S.) 162.
There is a further question upon which I 'think something may properly be said, and that is that the vote of expulsion was not by a majority of the national directors and officers present at the trial. The trial board consisted- of ten members (as stated heretofore), three of whom did not vote; five voted for expulsion and two were opposed. To permit petitioner to be deprived of membership and property rights by the vote not of a majority of those voting on the charges is to sanction and judicially approve a method of trial in the membership corporation which is contrary to law.
Where a corporation is authorized to take any action by the agreement or action of its directors, managers or trustees, it may be taken by such directors regularly convened as a board and acting by a majority of a quorum, except when otherwise expressly required by law or by the laws of the corporation. General Corporation Law, § 43.
The argument of the national advocate as to the Membership Corporations Law, and its force and effect on the questions at bar, has not been overlooked; but I think there is nothing in that law which is controlling herein as against the provisions referred to of the General Corporation Law, but, on the contrary, there is language therein which sustains the contention that the act of expulsion should be by a majority vote of the members of the trial body.
At the close of the trial Mrs. O’Donnell, one of the national directors, made the pertinent suggestion whether it had been clearly brought out that it was not Miss Reed who elected the new trustee in place of Mrs. Kelly; that it was not Miss Reed who refused to send the books to the state regent, but it was Court Utica No. 1. I agree with the evident force of those suggestions. The minutes of the court show its affirmative action in each of the two material matters charged against Miss Reed. The proof does not establish the allegations against her, and the record is without facts to sustain the expulsion; she had social membership and property rights which could not be taken from her by the national body. The conceded facts and undisputed records do not confer the necessary legal power upon it to do that. There was also a failure of a majority vote of the directors and officers at the trial. Peremptory writ of mandamus granted, with costs.
Motion granted, with costs.