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Loubat v. Le Roy

17 Abb. N. Cas. 512 Court N. Y. Supreme Court, First Department; General Term, English

Delivered by The opinions written on this appeal are reported in 40 Hun, 646 ,— Daniels, J. ,

Contents

Majority

p. 512
LOUBAT v. Le ROY.
N. Y. Supreme Court, First Department; General Term,
May, 1886.
[Reversing 15 Abb. N. C. 1 .]

Headnote

1. Expulsion of member of social club; remedy.] Where a large majority of the governing committee of 'a club 'voted to expel plaintiff for misconduct, after a submission,of the-facts to them,— Held, that plaintiff was not obliged before appealing to the courts for re-instatbment to avail himself of a rule of the club permitting him to apply for a rehearing to such committee, within the principle that actions.will not be sustained to correct illegal acts of such organizations, until the remedies provided for that object by their by-laws, or constitution, or both, have been exhausted ; the probability of favorable action upon a rehearing before the persons who have already formed and acted upon convictions adverse to the plaintiff is too remote.
2. ' The same; trial'by governing committee; 'notice and opportunity to be heard.] The governing committee of t.bp club;havjug sole power to determine the case appointed a sub-committee to investigate and report the facts. The sub-committee notified plaintiff to appear before them, and he did so, and the committee received his statement and the statements of other persons concerned. The govern-
. ing committee received and acted upon the report of the sub-committee and adopted a resolution expelling the plaintiff without notice to him or opportunity to appear before them and be heard. In an action to compel the club to rescind such resolution, —Held, that it was the duty of the governing committee to have given notice to the appellant of the time and place of the trial,
- with reasonable opportunity to attend and defend himself against the charges, and not having done so, they had no jurisdiction to ■ pronounce an effective judgment, and, their action was coram non judice,- and void. ,
3. The same.; iwodhirds vote of committee necessary to expel member.] The fourth article of the constitution of the club rnade “ a two-thirds vote of the governing committee,” necessary to expel a member. The twelfth article declared that “ a majority of its mom hers, exclusive of those absent by its permission, shall constitute a quorum of the governing committee,” Held, that a resolution of
p. 513
expulsion which failed to receive a two-thirds vote of the committee, although it received a two-thirds vote of a quorum of the committee, as it then existed, as reduced by vacancies in the committee, was inoperative upon the rights of . the plaintiff (Per Daniels, J.).
Appeal from a judgment rendered at the special term, in the first district, dismissing the plaintiff’s complaint.
The facts appear fully in the report of the decision below in 15 Abbott's New Cases, 1.[1]

delivering the main opinion, and Davis, P. J., concurring in a brief opinion in which he placed his concurrence in the conclusion reached “altogether upon the ground that the appellant was attempted to be removed without trial and opportunity to be heard secured to him by the constitution and by-laws of the club and Brady, J., concurring in the result.[1]

† † The general principles of law enunciated by the learned justice at the special term, and considered by him at length, are not questioned by the appellate court, the difference in result arising mainly upon the question as to whether notice and opportunity to be heard before the sub-committee was sufficient, without a hearing before the governing committee with whom the decision rested.