Schaefer v. D'Inzillo

Saul S. Streit, J.

The petitioner has brought this proceeding pursuant to article 78 of the Civil Practice Act to require the respondent D’lnzillo to account for and pay into the treasury of the respondent labor organization all sums of money received by him in violation of the constitution and by-laws of the respondent labor organization; and that an order be made requiring the respondent labor organization to remove said D’lnzillo from his position as business representative as provided in the constitution and by-laws of said labor organization. By separate motion, respondents move to dismiss the petition on the grounds that said petition is insufficient on its face in that it fails to state facts sufficient to entitle the petitioner to the relief sought in his petition. The respondent has not filed any affidavits but has submitted a memorandum of law. There is no provision under article 78 of the Civil Practice Act for the relief sought. Mandamus will not ordinarily lie against a voluntary unincorporated association to enforce the right of a member thereof. If an unincorporated association refuses to discharge a statutory duty imposed upon it, the court will, on proof that there is no other adequate remedy, grant relief appropriate to the circumstances presented. Under sections 12 and 13 of the General Associations Law and the constitution and by-laws of the association, the petitioner has an adequate remedy. Therefore, the motion to dismiss is granted; the application is denied and the petition is dismissed without prejudice to any other action or proceeding which petitioner may be advised to undertake.