Hyperlawhypertext legal database People ex rel. Miodownick v. Independent Order Brith Abraham of United States of America 101 N.Y.S. 866

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

101 N.Y.S. 866 Court N.Y. App. Div. Decision date 1906-12-21 English

Delivered by PATTERSON, P. J.

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PEOPLE ex rel., MIODOWNICK v. INDEPENDENT ORDER BRITH ABRAHAM OF THE UNITED STATES OF AMERICA.
(Supreme Court, Appellate Division, First Department.
December 21, 1906.)

Headnote

Mandamus—Acts op Fraternal Society—Reinstatement op Member.
An alternative writ oí mandamus should be granted to restore an expelled member of a fraternal society to membership, although he was removed in the method provided for by the constitution and by-laws of the society, where there is a controversy as to the facts in/valved.
Appeal from Special Term, New York County.
Application by the people, on the relation of Morris Miodowniclc, against the Independent Order Brith Abraham of the United States of America for mandamus. Application denied, and relator appeals. Reversed.
Argued before McLAUGHLIN, PATTERSON, INGRAHAM, CLARKE, and HOUGHTON, JJ.
Max Schleimer, for appellant.
L. Moschcowitz, for 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 unlawfully expelled from that society for the nonpayment of dues, and states in detail circumstances and asserted facts to support that allegation. In affidavits presented to the court in answer to the petition, the president and the financial

p. 867
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 the 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 $10 costs and disbursements, and the motion for an alternative writ of mandamus granted. All concur.