People ex rel. Miodownick v. Independent Order Brith Abraham of United States of America

Majority

p. 364

The People of the State of New York ex rel. Morris Miodownick, Appellant, v. Independent Order Brith Abraham of the United States of America and American Eagle Lodge No. 85 of the Independent Order Brith Abraham of the United States of America, Respondent.

First Department,

December 21, 1906.

Headnote

Mandamus to -compel reinstatement to fraternal society —when alternative writ should issue.

When a plaintiff petitioning for mandamus to compel reinstatement to a fraternal society alleges that he was expelled unlawfully and states facts supporting the allegation, the alternative writ should issue, although the opposing affi- - davits deny.the allegations of the petition-and justify the expulsion. The writ cannot be denied because the relator was removed “in the method provided, for by the constitution and by-laws of the organization,” for under the petition and reply there are questions of fact involved. '

Appeal by the relator, Morris Miodownick, from an order of the. Supreme Court, made at the New York Special Term and entered

p. 365

in the office of the clerk of the county of New York on the 9th day of-July, 1906, denying the relator’s motion for a peremptory or alternative writ of mandamus.

Max Schleimer, for the appellant.

Leopold Moschcowitz, for the respondent.

The relator applied to the Supreme Court for a peremptory or alternative writ of mandamus, directing the respondent to restore him to his rights, privileges, immunities and benefits as a member of the respondent corporation, which is a fraternal benefit society incorporated under, the laws of the State of New York. He sets forth in his petition that he had been itnlawf ally expelled from that society for the non-payment of dues and states in detail circutnstances and asserted facts to support that allegation. In affidavits presented to the court in answer to the petition, the president and the financial secretary of the respondent make denials of many of the statements of the petition and set forth matter which, if true, would indicate that the relator’s expulsion was justified.

The learned judge at Special Term denied the motion apparently on the ground that the relator was removed “in the method provided for by the constitution and by-laws of the organization.” That may be true, so far as mere formal procedure was concerned, but there still remained a controversy as to facts which involved the right to remove. It is quite apparent that if the relator’s story is true, his expulsion from the respondent society was illegal, and on the papers now presented to the court he was entitled to an alternative writ.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for an alternative writ of mandamus granted.

Ingbaham, McLaughlin, Claeke and Houghton, JJ., concurred.

Order reversed, with ten dollara costs and disbursements, and motion for alternative writ granted. Order filed.