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Burns v. Bricklayers' Benevolent Union

24 Abb. N. Cas. 150 Court City Court of Brooklyn, Special Term; English

Delivered by Osboknb, J.

Contents

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p. 150
BURNS v. BRICKLAYERS’ BENEVOLENT UNION.
City Court of Brooklyn, Special Term;
February, 1890.

Headnote

Oorporations ; remedies of member to review fine.] A member of art incorporated association formed for the purpose of obtaining by legal means a fair remuneration for the labor of its members, who has been fined for violation of the laws of the corporation, in continuing in the employment of one who had not complied with its rules as to payment of employes, cannot maintain an action to annul such fines and for restoration of his privileges, until he has exhausted the remedies provided by the by-laws by appeal from the imposition of the fines to the next monthly meeting of the association, and to the judiciary of the International Union.
Trial by the court.
John Burns brought this action against the Bricklayer’s Benevolent and Protective Union of the city of Brooklyn to annul certain fines imposed upon him by the defendant corporation, of which he was a member, for a restoration of his privileges as a member, and for damages, etc.[1]
The court found the facts as follows :
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Findings of fact.
I. That the defendant is and for several years heretofore was a domestic corporation organized under the laws of the State of New York and that its objects are to obtain by legal means fair remuneration for the labor of its members.
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II. That the defendant is a member of the Bricklayers’ and Masons’ International Union of America and is subject to the laws and governed by the said International Union.
III. That the plaintiff on February 11, 1889, and for
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nine years prior thereto was a member of the defendant and as such member the plaintiff subscribed to and became bound by the laws of the defendant and the said International Union.
IV. That during the week ending Saturday, December 22, 1888, the plaintiff was employed by one Thomas H. Bobbins as a bricklayer, and on the afternoon of said Saturday was not paid his weekly wages due that day and that same were refused him by said Bobbins which was a violation of the laws of the defendant, which plaintiff well knew.
V. That said Bobbins did not pay to the plaintiff said wages until 12 o’clock on Monday, December 24, 1888, and did not then pay the plaintiff seven hours detained time, which omission on said Bobbins’ part was a violation of the laws of the defendant, which plaintiff well knew.
VI. That said Bobbins from and after December 22, 1888, down to and including February 11, 1889, to the knowledge of the plaintiff failed to pay his employees their wages'weekly and also employed men not connected in any manner with the defendant or any society subordinate to the said International Union, all of which were in violation of the defendant’s laws as plaintiff well knew.
VII. That the plaintiff left the employ of the said Bobbins on said Monday, December 24, 1889, and returned to work for said Bobbins on January 2, 1889, while said seven (7) hours detained time was still due and owing to him by said Bobbins, and continued, with about two weeks intermission, working for said Bobbins until April following and that by so returning and working for said Bobbins plaintiff violated the laws of the defendant as he well knew.
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VIII. That for so violating the defendant’s laws, charges-were duly presented to the defendant against the plaintiff, and hearings were had upon said charges after due notice-thereof had been given to the plaintiff and the plaintiff was-thereupon found guilty of the charges so made.
IX. That the plaintiff for so violating the defendant’s-laws was fined on four (4) separate occasions as follows: January 7, 1889, the sum of ten dollars; January 14, 1889, the sum of twenty-five dollars ; January 28, 1889, the sum-of twenty-five dollars; February 11, 1889, the sum of fifteen dollars, making in all the sum of $75.
X. That the plaintiff on and since May 6, 1889, has paid unto the defendant on account of said fines, in instalments, in all the sum of twenty-five dollars, leaving a balance unpaid on said fines of fifty dollars.
XI. That the laws of the defendant during all of the said times aforesaid provided for an appeal from the imposition of said fines to the next monthly meeting of the defendant after such fine and also to the judiciary of the said International Union.
XII. That the- plaintiff did not appeal to the said monthly meeting of the defendant or to the judiciary of the said International Union.
Charles F. Brandt, for plaintiff.
I. The form of action is proper.
II. Damages are recoverable (Code Civ. Pro. §§ 484, 3,339.)
III. As to plaintiff exhausting his remedies: Angeli & Ames on Corp. (11 ed.) § 341; State v. Merchants’ Exchange, 2 Miss. App. 96 ; 15 Abb. N. C. 47 , n.,‘ Gosling v. Veley, 12 Q. B. 347).
IV. The by-laws are unreasonable and illegal (Fritz v. Muck, 62 How. Pr. 69 ; People v. Franciscus Benev. Soc., 24 How. Pr. 216 , 221; Wachtel v. Widows’ & Orphans’ Soc., 84 N. Y. 28 ; Cooley’s Const. L. 298; Dodwell v. Oxford, 2 Vent. 34 ; Guilford v. Clarke, 2 Id. 248; Oxford
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v. Wildgoose, 2 lev. 293 ; Stuyvesant v. New York, 7 Cow. 585 ; New York State v. New York, 3 Duer, 119 ; Wood v. Searl, J. Bridg. 141; 3 Leon. 8; Mobille v. Juille, 3 Ala. 137 ; 2 Kyd. Corp. 157; Willcock Mun. Corp. 154, § 368).
V. The mode of enforcing the penalty is by action of assumpsit (Barber Surgeons v. Pelson, 2 Lev. 252; Lee v. Wallis, 1 Kenyon, 295 ; Wooly v. Idle, 4 Bun. 1952; Felt-makers v. Davis, 1 Bos. & P. 98 ; Adley v. Reeves, 2 M. & S. 60; Mayor of Exeter v. Tumlet, 2 Wils. 95; Gunmakers v. Fell, Willis, 390).
Thomas E. Pearsall, for defendant.
I. At common law a member of a corporation could be expelled for offenses against it (People v. Medical Society, 24 Barb. 578 ; People ex rel. Thatcher v. N. Y. Commercial Assoc., 18 Abb. Pr. 271 ; People ex rel. Pinckney v. N. Y. Fire Underwriters, 7 Hun, 248 ; People ex rel. Corrigan v. Young Men’s Father Matthew Soc., 65 Barb. 395 ).
II. Plaintiff had sufficient notice (Wachtel v. Widows’, etc. Socty., 84 N. Y. 28 ; Commonwealth v. Penn. Beneficial Inst., 2 Sarg. & R. 141; Vatable v. N. Y., Lake Erie, etc., R. R. Co., 96 N. Y. 49 ).
III. Plaintiff has not exhausted his remedies under the laws of the corporation (Poultney v. Bachman, 31 Hun, 49 ; rev’g. 10 Abb. N. C. 252 ; Lafond v. Deems, 81 N. Y. 507 , 514; White v. Brownell, 4 Abb. Pr. 162 ; Gebhard v. N. Y. Club, 21 Abb. N. C. 248 ; Baum v. N. Y. Cotton Exchange, Id. 251 ; Karcher v. Supreme Lodge Knights of Honor, 30 Abb. L. J. 437 ; Harrington v. Workingmens’ Benev. Assoc., 27 Id. 438 ; Osceola Tribe, etc. v. Schmidt, 25 Id. 333 ; People ex rel. Deverell v. Musical Mut. Protective Union, 27 State Rep. 963; McGuire v. Trustees St. Patrick’s Cathedral, 27 Id. 192).
IY. Plaintiff’s remedy is by mandamus (Angell da Ames on Corp. (2 ed.) 566; O’Reilly v. Mutual Life Ins. Co., 2 Abb. Pr. N. S.167, 171; People ex rel. Doyle v. N.
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Y. Benev. Soc., 3 Hun, 361 ; People v. German Church, 53 N. Y. 103 ).

[Without written opinion filed the following conclusions of law.]

I. That the fines aggregating the sum of $75 imposed upon the plaintiff by the defendant between January 7, 1889 and February 11,1889, were duly and legally imposed.

II. That there remain due and unpaid to the defendant from the plaintiff the sum of $50 balance of said fines.

III. That before invoking the aid of this court the plaintiff must first exhaust the remedies provided for him by the defendant within the power of the defendant itself.

IV. That the complaint of the plaintiff must be dismissed with costs.

I accordingly direct judgment in favor of the defendant dismissing the complaint upon the merits with costs.

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