Sorrentino v. Ciletti — 75 A.D. 507

Majority

p. 507

In the Matter of the Petition of Rocco Sorrentino and Others, Individually and as Trustees of The Laborers' Society of Civility and Labor of Mutual Assistance of New York, Respondents, v. Stanislao Ciletti and Others, Appellants.

Headnote

PI lection of aliens as trustees by a society which passed a resolution (although its by-laws did not so provide) that only citizens can be trustees.

Where a society, whose by-laws contain no provision making citizenship a qualification for election to the office of trustee, adopts a resolution fixing such a qualification and thereafter elects to the office of trustee persons who are not citizens, the election of such persons is valid, as the society may revoke the resolution in question at any time and does so revoke it when it elects aliens • to the position of trustee.

Appeal by the defendants, Stanislao Ciletti and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of June, 1902, granting the petitioners’ motion for

p. 508

ail adjudication declaring them to be lawfully elected trustees of The Laborers’ Society of Civility and Labor of Mutual Assistance of New York and declaring the election of the appellants null and void, and also from an order entered in said clerk’s office on the 23d day of June, 1902, denying the defendants’ motion for a reargument of the motion.

John JPalmiet'i, for the appellants.

Antonio 0. Astarita, for the respondents.

It would appear from the undisputed testimony that the relator Oaluori resigned as trustee, and that his resignation was accepted by the corporation. In view of such resignation, I do not think the court was justified in declaring that he was a trustee for the year 1902. As to the other relators, however, I think they were legally elected. The resolution that only citizens should be eligible to the position of trustee was, if adopted at all, a resolution of the society, which it could revoke at any time. It does not appear that any by-law of the corporation fixing citizenship as a qualification for a trustee was adopted. Subsequently, when the society elected these relators trustees, it had the right to elect anybody eligible under the law, notwithstanding that a resolution had been passed that it would not elect as trustee any member, who was not a citizen of the United States. The election, therefore, was valid, and the persons elected became trustees of the corporation. • There was no acquiescence or laches that would prevent the legally elected trustees from insisting upon performing the duties of the office. This was not a case where there was a void or illegal election and. where the court should order a new election, but where certain trustees were lawfully elected, and are entitled to perform the duties of the office.

The order appealed from should be modified by denying the application as to Oaluori; as to the other relators, affirmed, without costs of this appeal.

■ Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Order modified by denying the application as to Oaluori, and as to the other relators, affirmed, without costs of appeal.'