People ex rel. Stephens v. Greenwood Lake Ass'n — 44 N.Y. St. Rep. 914

Majority

p. 914

The People ex rel. William A. Stephens, App’lt, v. The Greenwood Lake Association, Resp’t.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Associations—Expulsion op member—By-laws.

The by-laws of the defendant provide that a member may be expelled at a special meeting of the board of trustees, and that special meetings are to-be called by notice in writing to each member of the board. Relator was-expelled at a special meeting. One of the trustees did not receive written notice of this meeting, and aid not attend. Held, that the failure to notify said trustee rendered the action taken invalid, although there were enough votes to have overcome that of the absent member, and that relator was entitled to a mandamus reinstating him as a member.

Appeal from order denying motion for mandamus..

M. H. Cardozo, for app’lt; A. Otterbourg, for resp’t.

The trustees of the respondent assumed to act upon certain charges made against the relator, and to expel him from the association, thus depriving him of his rights as a member of the corporation; and the relator claiming that such expulsion was not in accordance with the provisions of the by-laws, now asks to be reinstated as a member of the corporation. The relator is entitled to the relief sought, unless it appears that the bylaws were .strictly complied with. Section 3 of art. 4 of the-by-laws provides for -meetings of the trustees. They are required to hold a regular monthly meeting, and special meetings are to be called by the secretary, on the direction of .the president or vice-president, by a notice in writing to each member of the board. And no special meetings can be held at which a member can be expelled except by complying with these provisions. By § 6 of art. 6, a member may be expelled at a special meeting of the board of trustees.

It appears in the papers on which this application was made to-the court below, that one of the trustees never did receive a written notice to attend this meeting, and was not present thereat. And we think that in consequence of the failure to give a written notice to the trustee Evans, the board of trustees acquired no jurisdiction to expel the relator at that special meeting.

p. 915

The claim that there were enough votes to have overcome the vote of the absent member in no way affects the question, because in order that valid action may be taken by such a board, all the members of the board must be legally summoned, although the majority may control the action of the board when legally convened ; the. argument being that the reasoning of one member of a board may influence, "and .frequently has influenced the minds of many of his associates as to the propriety of the contemplated action, and whose votes would have been the opposite of what they were had such member been present. In re E. N. Tramways, L. R., 5 Ch. Div., 963; Imperial Mercantile Cred. Ass'n v. Coleman, 6 Chy. App. Cas., 558; Paine v. Irwin, 16 Hun, 390 ; Duryea v. Traphagen, 84 N. Y., 652 .

This court has settled that where notice is required to be given to a trustee of a meeting of a board of which he is a member, and no provision is made as to the manner of service, it must be personal as required at common law. People ex rel. Decker v. Hoboken Turtle Club, 38 St. Rep., 4 , and cases there cited.

We think, therefore, that the relator was entitled to the mandamus reinstating him as a member of the corporation, and that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.