People ex rel. Decker v. Hoboken Turtle Club — 38 N.Y. St. Rep. 4

Majority

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The People ex rel. Alonzo T. Decker, Resp’t, v. The Hoboken Turtle Club, App’lt.

(Supreme Court, General Term, First Department,

Filed April 17, 1891.)

Headnote

Clubs—Expulsion op member—Notice.

Where the by-law or constitution of a club provides that a member may be suspended or expelled, provided that the penalty should not be enforced until ten days previous notice in writing has been given the member and he has been given an opportunity to be heard, Held, that in the absence of any provision or agreement as to the mode of service the notice should be personally served, and that a notice mailed to a member which in due course of mail should have been delivered ten days previous to the proposed action, but which he did not receive until the following day,, was insufficient to confer jurisdiction to expel him.

Appeal from order granting writ of peremptory mandamus.

W. H. Townley, for app’lt; J. B. Dill, for resp’t.

The defendant is a social organization incorporated under the laws of this state. The relator was a member and the treasurer of the club, and was expelled by the board of governors by resolution, after an alleged trial, in which he refused to participate.

There was an appeal taken from the action of the club, which was confirmed at a meeting of the members thereof, and this application having been made for a mandamus to restore the relator to his office as treasurer and also to his membership, the court refused to restore him to his office, but ordered him to be reinstated as a member.

" It appears that the principal ground upon which the decision of the court below proceeded was because a certain by-law of the club had not been complied with.

Such by-law reads as follows: § 2. If the conduct of a member shall appear to the house committee to be disorderly, in violation of the rules, prejudicial to the interests or character of the club, or contrary to its by-laws, the committee shall inform him thereof in writing, and if the nature of the offense, in its opinion, requires it, request him to resign. If such information or request

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be disregarded, the house committee shall refer the matter to the next regular meeting of the board of governors, or to a special meeting thereof, of which reference written notice of not less than two weeks shall be given to the offending member.

The constitution of the club contains the following provision:

Section 1. The board of governors shall have power to censure, suspend, or, by a two-thirds vote of members present, expel any member charged with conduct which, in the estimation of the board, is prejudicial to or which may endanger the welfare, interest or character of the club.

§ 2. All charges of misconduct against any member must be presented to the governors in writing by the house committee, to whom all complaints must first be made; no penalty, however, shall be enforced against any member of the club until after ten days’ previous notice in writing has been given to such member, specifying the charges against him, and he shall have been given an opportunity to be heard by the board in his own defense.

And although by this provision of the constitution all charges of misconduct against any member must be presented to the governors in writing by the house committee, yet we think it was in no way intended to limit the powers conferred upon the governors by the constitution by anything contained in the by-law above referred to.

We think, as is suggested by the learned counsel for the appellant, that this by-law relates to the police powers of the house committee in reference to things coming under the cognizance and view of that committee; in other words, to the conduct of a member while in the club house, the language of the by-law being: “ If the conduct of a member shall appear to the committee to be disorderly, in violation of the rules, prejudicial to the interest or character of the club, or contrary to its by-laws,” evidently referring to the conduct of the member in the club itself, and having no relation to anything he might do outside of the limits of the club.

Under such circumstances the house committee might call attention to the member’s disorderly conduct, and request him to resign, and if he did not resign they might send his case to the board of governors. But they are not required to do so.

This provision in no way abridges the powers of the board of governors conferred upon them by the constitution, which is, that they may censure, suspend or expel any member charged with conduct which, in the estimation of the board of governors, is prejudicial to or might endanger the welfare, interest or character of the club. And this power is much broader than that contained in the by-law, and intends to reach all cases where the conduct of the member is prejudicial to the welfare, interest or character of the club, and is not confined to disorderly conduct, as is the power conferred by the by-law.

There is another point, however, which seems to be conclusive upon this appeal, and that is, that the relator did not receive ten days notice in writing of the charges against him, as provided by the constitution.

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It appears that the notice was mailed to the relator at the place where notices were accustomed to be sent, which, in due course of mail, would have been delivered at his office ten days previous to the proposed action. It appears, however, that this notice was not personally received until the next morning by the relator, and thus, if it was necessary to serve the notice upon the member personally, no such notice was received more than nine days before the action of the board of governors.

It appears to have been held by the court of appeals in the case of Wachtel v. Noah W. & O. Society, 84 N. Y., 31 , that in the absence of any agreement by a member of a corporation, or any provision in the charter or by-laws for a different mode of service, it should be personal, as required at common law, where the object is to deprive a party of his rights or property. This rule is also declared in the cases of Rathbun v.Acker, 18 Barb., 393 , and People ex rel. Railroad Co. v. Railroad Co., 13 Hun, 212 .

It would thus appear that the board of governors did not obtain jurisdiction of the relator, he not having appeared before them, and their action was unauthorized by the constitution.

The order should be affirmed, with costs.

Daniels, J., concurs.