People ex rel. Solomon v. Brotherhood of Painters

Majority

p. 595

The People of the State of New York ex rel. Meyer Solomon, Respondent, v. Brotherhood of Painters, Decorators and Paperhangers of America and Others, Appellants.

First Department,

November 5, 1915.

Headnote

Foreign corporations—membership corporation — mandamus to compel reinstatement of member illegally expelled — damages — supervision over foreign corporations — Appellate Division — authority to disregard technical errors and defects.

A foreign corporation operating in this State through local unions which are unincorporated organizations may be compelled by mandamus to reinstate a member improperly expelled, and also may be held liable for damages for injuries resulting from the illegal expulsion.

While mandamus might not lie against the local unions alone, they were properly joined as defendants in the proceeding because they acted as agents of the corporation.

A foreign corporation which has come into this State to pursue the objects of its incorporation cannot deny the jurisdiction of our courts to scrutinize its action and to afford redress for a wrong done to a resident within the State.

The fact that such corporation has failed to file the necessary certificate to “do business within the State cannot be interposed by it as a shield against proper supervision.

The Appellate Division under section 1317 of the Code of Civil Procedure, as amended, may affirm a peremptory writ of mandamus and a judgment for damages, although the proceedings were irregular in that the justice who presided at the trial of the issues of fact himself issued the mandamus instead of certifying the verdict back to the Special Term, and in that no final order was made directing the issue of the peremptory writ of mandamus.

Appeal by the defendants, Brotherhood of Painters, Decorators and Paperhangers of America and others, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of New York on the 28th day of November, 1914, upon the verdict of a jury.

The judgment directed the reinstatement of the relator to membership in the respondent organizations, and provided for the payment to him of $875 damages.

Defendants further appeal from the peremptory writ of mandamus issued herein on the 20th day of November, 1914, pursuant to said- judgment, and from the allowance of said writ,

p. 596

and also from the order herein entered in the office of the clerk of the county of New York on the 19th day of November, 1914, denying defendants’ motion to set aside the verdict of the jury and for a new trial made upon the minutes.

Morris Hillquit, for the appellants.

Alexander Rosenthal, for the respondent.

The relator seeks restitution to membership in a trade organization known as the Brotherhood of Painters, Decorators and Paperhangers of America. This is a foreign corporation operating extensively throughout the United States, acting in each State through local unions which, in this State, are unincorporated organizations. That the relator was improperly expelled from the brotherhood and that he has unsuccessfully pursued all the means of redress afforded him within the organization is not to be questioned and the verdict to that effect was amply warranted.-

The appellants, however, insist that the mandamus will not lie against the brotherhood, because it is a foreign corporation, and will not he against the local unions, who are also made defendants, because they are unincorporated.

Neither objection is well taken. The brotherhood has assumed to come into this State to pursue the objects of its incorporation, and cannot deny the jurisdiction of our courts to scrutinize its action, and to afford redress for a wrong done to a resident within the State. (Matter of Wilcox, 123 App. Div. 86 .) The fact that the brotherhood has failed to file the necessary certificate to do business within the State cannot be interposed by it as a shield against proper supervision.

As for the local district unions, while mandamus might not lie against them alone, they act in this State as the agents of the brotherhood, and for that reason are properly joined as defendants in- this proceeding, because it is they who will be compelled to act in order to make the writ against the brotherhood effective. The relator has recovered what the jury deemed to be fair damages for the injury done him by his illegal expulsion. The recovery of such damages is authorized

p. 597

by the Code of Civil Procedure (§ 2088) (People ex rel. Deverell v. M. M. P. Union, 118 N. Y. 101 ), and the amount does not appear to be excessive.

The proceedings leading up to the judgment appealed from were irregular, in that the justice who presided at the trial of the issues of fact himself issued the mandamus, instead of certifying the verdict of the jury back to the Special Term as is the proper practice. Furthermore no final order was made directing the issue of the writ of peremptory mandamus.

For these purely technical errors, we might remit the cause for more formal proceedings, and in the past should have felt bound to do so. (People ex rel. Geraci v. Italian Assn. St. Bartholomew, 123 App. Div. 277 .) The power and duty of this court to disregard technical errors and defects has been much extended recently (Code Civ. Proc. § 1317, as amd. by Laws of 1912, chap. 380), and this appears to be a proper case to exercise the power. The relator has a mandamus and a judgment, to both of which he is entitled. Thus a correct result has been obtained, and it is of no consequence that informalities can be found in the steps leading up to a proper result.

The judgment and order appealed from are affirmed, with costs.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment and order affirmed, with costs.

Cases cited

In re Wilcox 123 App. Div. 86 N.Y. App. Div. 1908-01-08 p. 596
People ex rel. Deverell v. Musical Mutual Protective Union 118 N. Y. 101 N.Y. 1889-12-20 p. 597