Brendon v. Worley — 8 Misc. 253

Majority

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Edwin V. Brendon, Respondent, v. George S. Worley, as President, etc., Appellant.

(New York Common Pleas—General Term,

May, 1894.)

Headnote

Where there is no ambiguity in the by-laws of an association, but their meaning is clear and precise, opinions of superior officers of the order with which it is connected as to their meaning are inadmissible.

The by-laws of the lodge of which defendant is president provided for the election of a physician who was to hold office “during the pleasure of the lodge ; ” they also provided that seven ballots should be required to determine any election, motion or question before the lodge, but a majority of the valid votes cast should decide all elections, motions or questions not otherwise provided for. No special provision was made for the removal of the physician. The plaintiff was elected physician, but subsequently the lodge, at a regular meeting at which over thirty members W'ere present, by a majority vote, adopted a resolution removing him. In an action for compensation accruing'after that date, the court allowed evidence tending to show that it was the opinion of some of the officers of the supreme and grand lodges to which such lodge was subordinate that such removal could only take place at a meeting specially called for that purpose. Held, error, and that plaintiff’s employment was terminated by the action thus taken.

Appeal from a judgment of the District Court in the city of New York for the first judicial district, rendered for plaintiff upon a verdict in his favor.

Action for services as a physician against a voluntary association of more than seven members.

Morris Putnam Stephens, for respondent.

William P. Wilder, for appellant.

Plaintiff, a member of “Nelson Lodge, No. 64, Order Sons of St. George,” was elected its physician, pursuant to a provision of the by-laws of the lodge, as follows: “ A legally qualified physician (who shall be an Englishman) shall be elected and remain in office during the pleasure of the lodge.” .The compensation was payable quarterly. At a stated or regular meeting of the lodge held on November 28, 1892, upwards of' thirty qualified members being present thereat,

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it was resolved, by a majority vote, that plaintiff’s employment should be discontinued from thenceforth. This action was brought to recover compensation as such physician, and it was conceded that every part of the compensation claimed had accrued, if at all, subsequently to the adoption- of the resolution above alluded to, and notice thereof to plaintiff. On the trial plaintiff contended that his dismissal at a regular meeting was unauthorized, and that such dismissal could be effected only at a special meeting called for that purpose. Upon his successful issue from that contention plaintiff’s right to recover in this action was dependent.

No ambiguity was apparent from the by-law under which plaintiff’s election was made, the words “ during the pleasure of the lodge ” plainly having no other significance than that plaintiff’s continuance as physician should at all times be at the will of the lodge, and that upon the refusal of the lodge to continue the employment the' latter should cease. Elsewhere the constitution and by-laws of the lodge provided that “ seven valid votes or ballots shall be required to determine any election, motion or question before the lodge, but a majority of the valid votes cast shall decide all elections, motions or questions not otherwise provided for.” No provision was made for the removal of the physician to the lodge at a special meeting, or one called for that purpose, nor was there anything inconsistent with the right of the lodge to discontinue its employment of the physician at a regular or stated meeting. It was conceded that upwards of thirty qualified members were present at the meeting of November 28, 1892, and that a majority of the members present voted for the adoption of the resolution. The lodge, therefore, expressed its will in the premises as provided for by its by-laws. Hence, with the adoption of the resolution for plaintiff’s dismissal, and notice thereof to him, his employment must be deemed to have come to an end.

The trial justice, against the protest of defendant’s t counsel, admitted evidence tending to show that it was the opinion of some of the officers of the supreme and grand lodges to which

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u Nelson Lodge ” was subordinate, that the physician - was removable only at a meeting specially called for that purpose. This evidence was improperly admitted. Obviously, its sole office was to add to the hy-laws, not to interpret them. No ambiguity was apparent with reference to the by-laws in evidence. Their meaning was clear and precise. Granted, as respondent’s counsel contends,' that in case of uncertainty in the meaning of a by-law the opinions of officers and members of the association may be competent in aid of interpretation, the proposition is irrelevant to the facts. So far as the by-laws in evidence extend, they appear to be definite and certain beyond dispute. They do not even remotely sustain an inference of the probability of an intention to subject the exercise of the right of the lodge to dismiss its physician to the requirement of a meeting specially called for the purpose. It may be that it would have been wiser to have so provided, but with that we are not concerned, for upon no proper theory of interpretation can the latter be made to supply an omission to express a particular intention.

For error in the admission of the evidence alluded to the judgment must be reversed, and, as upon the conceded facts plaintiff is not entitled to recover in any event, the complaint should be dismissed upon the merits, with costs of this appeal, and of the court below, to the appellant.

By section 1, article 30 of the by-laws of the lodge its physician is to “ remain in office during the pleasure of the lodge.” The plaintiff was removed by a majority vote at a regular or stated meeting of the lodge; and the question is, whether such vote at such meeting be an expression of the “pleasure of the lodge?” None but an affirmative answer can be returned to the inquiry.

The time of the stated meetings of the lodge was appointed by the by-laws; and nothing in the record impeaches in any respect the regularity of the meeting in question. But, “ when a regular stated time is fixed in the charter or by-laws or by usage for the election of officers or the transaction of

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business, it will be presumed that every member had notice. * * * The effect of a stated day is to dispense with the necessity of proving that notice of the meeting was given to absentees.” 1 Waterman Corp. § 62. The meeting was perfectly competent to dispose of the plaintiff, and has done so effectually.

Critically examined, the testimony of the so-called experts was not proof of a custom, but only evidence of opinion as to-the meaning of the by-law. The language of the by-law being perfectly plain, its construction was for the court, and not for the witnesses. Wiggin v. Knights of Pythias, 31 Fed. Rep. 122 , 124.

For these reasons, in addition to those presented in . the opinion of Judge Bischoff, I concur in the reversal of the' judgment.

Judgment reversed and complaint dismissed on the merits,, with costs of appeal and of the court below.