Citation Numbers： 26 A.D. 297
Judges： Goodrich
Filed Date： 7/1/1898
Status： Precedential
Modified Date： 10/28/2024
The relator in March, 1896, applied at Special Term for a writ of mandamus to compel the Uptown Association to reinstate him as one of its members. The application was denied, but on appeal the Appellate Division of this department, to which the appeal had been transferred, reversed the order of the Special Term and directed the issuance of an alternative writ of mandamus (9 App. Div. 191). This writ was issued and the issues arising under it came on for trial before the court and a jury in May, 1897, and resulted in the direction of a verdict for the defendant, and from the final order dismissing the writ the relator appeals.
The Uptown Association is a membership corporation in the borough of Manhattan, organized under chapter 267 of the Laws of 1875, and governed in its action by the Membership Corporation Law (Chap. 559, Laws of 1895). The by-laws provide as follows : “ Section 1. The Board of Directors shall have charge and supreme control of all the affairs of, and of every committee of, the Association ; it shall ballot for all candidates for admission to membership, and shall serve as a Court of Appeal before which all questions and differences affecting the interests of the Association may be laid, subject to its final decision.”
On November 13, 1895, Mr. Bristol, another member of the association, proposed, and the relator seconded, the nomination of Mr. Siegel for membership in the club. On January 8, 1896, the board of directors by a vote of nine to one rejected the application of Mr. Siegel for admission. On January sixteenth Ward and Bristol sent to the members of the club a circular, the material parts of which read as follows:
“New York, Janua/ry 16,1896.
“ To the Members of the Uptown Association:
“ Gentlemen.— The undersigned proposed and seconded Mr. Henry Siegel for membership in the Uptown Association on the, 13th day of November, 1895. Mr. Siegel -was further seconded by Mr. Frank J. Sprague, Mr. Louis Auerbach, Mr. Marinus L. Vanderkloot and Mr. Elias Rothschild. Mr. Siegel’s name having remained on the bulletin board for an unusual length of time, we, on the 7th day of the present month addressed the following letter to a number of gentlemen upon the Board of Management:,
*300 “ ‘ Dear Sir.— As mover and seconder of Mr. Henry Siegel for membership of the Uptown Association, we respectfully protest against the great length of time his name has been posted upon the bulletin board of the club. Understanding that Mr. Siegel has an enemy in your honorable board, who has declared that Mr. Siegel will not become a member of the Uptown Association, we have written to a few prominent people who we naturally thought knew Mr. Siegel, and stated the facts. We have replies as follows, the original letters being at your disposal. (Here follow excerpts from letters of several residents of Chicago commendatory of Mr. Siegel.) These c recommendations,’ which,- from the action, of your board, seem necessary for the best interests of the club, could be very greatly extended. In conclusion, we do not think that thp Uptown Association can longer afford to treat: Mr. Siegel in the manner that it has, and we hope to be immediately advised of his election as a''member of the club. Yours very truly, Jno. I. D. Bristol, J. Carlton Ward.’
- ■ “ Under' date of the 8th inst. we were informed by Mr. H. J. Park, secretary, that Mr.. Siegel had not been elected. We naturally look upon the whole proceeding of blackballing Mr. Siegel as ■a serious mistake, and as not by any means the expression of the wishes of the great majority of the club. The only question that is. paramount in this whole matter is whether Mr. Henry Siegel is a lit member for the Uptown Association. In proposing Mr. Siegel we had in view his modest,, genial and- gentlemanly qualities; the-fact of his being-the leading member of the firm of Messrs. Siegel, Cooper & Co., whose three million dollar enterprise is now under way within a block or two of the club house, and that additional members of the standing and reputation of Mr. Siegel, who are pronounced factors in the development and growth of the Greater New York,, are to-day the great need of the Uptown Association as a successful club. The immediate rectification of the ill-advised act of blackballing Mr. Siegel should appeal, we believe, to the sense of right of our brother members, and we now seek for advice and-counsel in this matter, and hope to receive from you an immediate reply. We are of the'opinion that a call for a special meeting .of the club, as provided in Article XXIII of the by-laws, should be immediately sent out, and that, at this meeting the neces*301 sary amendments to the hy-laws he made in order that Mr. Siegel can be elected to membership as soon as possible, and similar club mistakes, in so far as the Uptown Association is concerned, be things of the past. In this connection, and in View of the forthcoming annual meeting and • election of the club, it might also be borne in mind that but two blackballs rejected Mr. Siegel, and that the circumstances under which those balls were cast should be carefully considered by all the club members.
“ Very truly yours,
“ JNO. I. D. BRISTOL.
“ J. CARLTON WARD.”
Bristol also made an entry in. the proposal book which reads: “ Mr. Siegel was blackballed Jan’y 8th, 1896. Don’t buy his crockery from a certain man.”
Another, section of the by-laws reads as follows:
“ Sec. 4. The board shall have power, by a vote of at least nine of its members, to annul the membership of any member of the Association for any conduct on his part which, in their judgment, may be likely to endanger the welfare, interests or character of the Association.”
In the exercise of this power the board, on January twenty-second, sent the following letter to the relator :
“ Dear Sir.— The Board of Directors has under consideration the circular letter issued by you in regard to the rejection of Mr. Siegel as a member of this club. There will be an adjourned meeting of this board on Wednesday, the 29th inst., at 2 o’clock, to consider this matter in its prejudicial hearing upon .the interests of the club. You are requested to be present at this meeting to give such explanations as you may desire to make in justification of your action.
“Very respectfully,
' “ HOBART J. PARK, Sec'y.”
A similar letter was sent to Bristol, which contained an additional charge, as to the entry in the proposal book. On the twenty-ninth day of January, the day named in the letter, Ward and Bristol appeared before the board, and there is considerable divergence of testimony as to what occurred at that time. The relator testified.
On the other hand, several of the directors were examined as witnesses, and testified that the president stated to Ward and Bristol that they were cited to answer for the issuing of the circular which contained matters prejudicial to the interests of the club, false statements concerning the matters of the club, and as to certain
At the close of the testimony at the trial the relator asked that the following questions be submitted to the jury -.'“First. Did the relator have reasonable notice to defend himself upon the charge of making a willful or reckless misstatement in the circular of January, 1896? Second. Was the relator expelled upon that charge? Third. Was such a charge established? Fourth. Did the relator have a fair and reasonable opportunity for explanation and defense upon the charges against him ? ” •
The court directed the jury to find a verdict for the defendant: “ That the relator had sufficient notice of the charge against him, .and sufficient opportunity to be heard in his-defense, and that the Board of Directors, in expelling him, had cause for the expulsion decreed,” to which the relator excepted.
On the ¡Drevious appeal in this case (9 App. Div. 191) the court held : “We think that the relator had the clearest and most undeniable right to appeal to his fellow-members either to alter the by-laws or to change the personnel of" board of directors; that for this.purpose he had the right to state any material fact; and to' fairly criticise any action of the governing authorities of the club. It may be unfortunate that there should be a difference of opinion or disputes in club management, but dissension is a hazard to which all associate action is liable, and clubs no more than other organizations can expect to be exempt from this hazard. Of course, the relator had no right to make any misstatement of fact or cast unfounded aspersions on the directors or his fellow-members. * * * The opposing affidavit states that in fact nine ballots were cast against the candidate instead of two. If the relator knowingly published a false statement on this subject, or even recklessly made one without seeking to ascertain whether it was true or false, such conduct would be a sufficient ground for action by the board of directors. But the notification to appear before the directors seems to indicate .as the relator’s offense his appeal to his. fellow-members, and not
It will thus be seen that the purpose of the alternative writ directed on the former appeal was to determine on the trial: First, what was the charge against him ? Second, what were the proceed* ings against the relator? Third, for what was he tried? And these subjects we shall consider in their order.
First. What was the charge against the relator ? ' This must be derived, we think, solely from the directors’, letter of January twenty-second, in which they stated that the board had under consideration the circular letter issued by him, and its' prejudicial bearing upon the interests of the club.
Second. What were the proceedings against the relator? The directors had the power, under the by-law above quoted, to expel a member “for any conduct on his part which in their judgment may be likely to endanger the welfare, interests - or character of the association,” and this was- also the limitation of their power. They indicated the purpose and intention of the hearing, when, in the notice of January twenty-second, they said that the matter under consideration was the issuance of the circular. The directors would have been acting within their power if they had summoned the relator for trial on any matter contained in the circular, and if there had been fair notice given of the object of the trial, their proceedings in this respect would have been regular and authorized.
It is evident, however, from the testimony of the defendant’s witnesses that the board intended to, and did, coniine, the trial simply to the false statement in the circular, without permitting the relator' to make any explanation as to his reasons for issuing the circular. The relator was called upon by the president of the board “ to make such explanation as you see fit to make as to' why you issued that circular.” ■ The relator was proceeding to give such explanation when he was summarily stopped and prevented from giving his reasons-why he issued the circular. It makes no difference that, to the minds- of the directors, his reasons might not have been relevant or sufficient. The “ why,” -was what he was directed to give, and was
We think that the witness was improperly and unjustly prevented from giving the reasons, and all the reasons, which operated on his. mind for issuing the circular, and if one of these reasons was that Hr. Siegel was improperly or unfairly rejected from membership, he should have been heard in his defense. If the directors had, in their letter, limited their charge against the relator to the false statement at the end of the circular, as to the number of blackballs cast,, and had seen fit to give the relator opportunity to be heard on that, matter alone, they might have excluded all other matters, but the door was opened widely, both by the letter and the statement of the president. The refusal to permit the relator to state his reasons was: not in accordance with the letter, and he should have been permitted to state his opinion as to the rejection of Hr. Siegel. When he was stopped he said that if he could not go into the matter of Hr. Siegel’s-rejection he had nothing further to say.; without going into. the matter of Siegel’s rejection he had nothing to say. But it would seem as if he had the right to explain that the reason why he had issued the circular was the very subject embraced and stated in the.
■ Third. What the relator was tried for. From the foregoing remarks it is evident that the sole matter upon which the relator was tried and expelled was the false- statement in this circular, that Mr. Siegel was rejected by only two blackballs, and that the circumstances under which the balls were cast should have been carefully considered by the committee.
The directors addressed the relator a letter after the trial, in which it was stated that the. board, acting under section 4 of the by-laws already quoted, had annulled his membership, and a reference to this section shows that it relates to conduct on his part which, in the judgment of the board, might be likely to endanger the welfare, interests or character of the association. But the particular action of the relator which thus endangered the welfare of the association was not • specified.
The relator’s first request to submit to the jury the question whether he had-reasonable notice to defend himself upon the charge of making a willful or reckless misstatement in his circular would
As to the second request, whether the relator was expelled upon that charge, we think there was sufficient evidence to justify the direction of a finding that the relator was tried by the board upon the charge of making a willful or reckless misstatement in the circular.
The third and fourth requests to submit the questions whether the charge was established before the board and whether the relator had a fair and reasonable opportunity for explanation and defense upon the charges against him, are so closely allied that they must be considered together. We are not called upon to express any opinion as to the' action of the relator in sending out the circular and making the false statement as to the blackballs, therein contained, but there was evidence tending to show that Hr. Johnson, the clerk of the club, had informed the relator and Bristol that only two blackballs were cast against Hr. Siegel. He was entitled to give this as one of his reasons for issuing the circular; but the relator’s line of defense was demolished by the vigorous ruling that he could not be permitted to discuss the rejection of Hr. Siegel, whereupon he asked for an adjournment of the proceedings for a few days, so that he could come in and make a “ defense in line with the by-laws of the association,” and this was refused by the board.
Upon the last two questions there was evidence of such a conflicting character as to require the submission of both questions to the jury, and the refusal of the learned court to do so was reversible error.
All concurred, except Bartlett, J,, not sitting.
Final order reversed and new trial granted, costs to abide.the event.