Ewald v. Medical Society of the County of New York

144 A.D. 82, 128 N.Y.S. 886, 70 Misc. 615, 1911 N.Y. App. Div. LEXIS 1629

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1911
• Status: Published

Opinion

Miller, J.:

The plaintiff became a member of the defendant medical society in January, 1904. On March 10, 1910, charges were preferred against' him by a number of physicians to the effect that in a scientific article, contributed by him to be published by a hospital of whose staff he was a member, he had described certain operations as having been performed by him, which in fact he had never performed.' He wás tried and found guilty by the defendant’s board of censors and was suspended from membership until June 1> 1911' On September 30, 1910, written charges were filed with the president of the defendant society by one of its members to-the effect that during the pendency of the first charges the plaintiff and.another physician had changed the- records of the Sydenham Hospital for the purpose of substantiating the statements made by plaintiff in the said article, which acts, it was claimed, unfavorably affected the dignity, character and interest of the medical profession, of the defendant society ■ and of its members. A copy of said charges -was not then served upon the plaintiff as he was then under suspension. His associate, however, was tried on them and he was present and testified at the trial and heard the charges read. The plaintiff’s' said associate was found guilty and his expulsion recommended by the censors on December 12, 1910, and on that day a resolution "of the society was adopted restoring "the plaintiff to membership in good standing.on and after that date. On December 14, 1910, the plaintiff tendered his resignation, which was not accepted, and on December 17, 1910, he was served with a notice of said charges and that a meeting would.be held on December thirtieth following for the purpose of considering them. Whereupon this action was brought. *

If the plaintiff is still a member of the society this action is premature. (See Moyse v. New York Cotton Exchange, 143 App. Div. 265, and cases cited by Mr. Justice Scott, decided by this court in this department March 10/1911.) It may well be doubted whether equity will entertain jurisdiction at the suit of a non-member to restrain the proceedings of a membership corporation, like the defendant society. The-plaintiff may ignore the proceeding, and, if he is libeled, sue for damages. (See Fawcett v. Charles, 13 Wend. 473.) . However, assuming without deciding that upon the plaintiff’s theory the case is one for equitable cognizance, we are of the opinion that the injunction should have been denied for the reason that the defendants have jurisdiction to try the plaintiff on the charges preferred.

In his application for membership the plaintiff expressly agreed, “if elected, to comply with all rules, regulations and by-laws passed by Society, or adopted for its government.” Among the pertinent provisions of the defendant’s by-laws the following may be noted: “All resignations shall be in writing and shall be sent to the Secretary and referred to the Comitia Minora at its first meeting after their' receipt. If accepted, the member thereby severs all connection with The Medical Society of the County of New York, the First District Branch, and The Medical Society of the State of New York, and relinquishes all right and title to any share in their property. No resignation shall be accepted from a member owing dues or assessments, or under charges.” (Chap. 1, art. 6.) “The censors shall take cognizance of all charges preferred against a member. Charges against a member shall be presented to the President in writing, and by him referred to the censors, who shall meet,' examine the same, and the evidence thereon.” (Chap. 6, art. 4.) “There shall be three degrees of discipline: censure, suspension and expulsion.” (Chap. 6, art. 6.) “The Constitution, By-laws, and resolutions of this Society, and the Constitution, By-laws, rules and regulations of The Medical Society of the State of New York, which have reference to county societies, shall be binding on the members of this Society; and any intentional violation or disregard of the same-shall be cause for discipline. The commission of any act which unfavorably affects the character, dignity or interests %f the medical profession, or of this Society, or any one or more of its members, shall also be cause for discipline.” (Chap. 6, art. 10.) When the plaintiff became a member of the defendant society its by-laws provided for amendment, alteration or addition thereto by a majority vote of its members at annual meetings. The plaintiff does not question the regularity of the adoption of the present by-laws or deny that he is bound by them, provided the defendant had the. power to adopt them. TTis contention, in brief, is that the society has no power to retain a member for the sole purpose of trying him on charges and expelling him; that any by-law purporting to give it that power is beyond the chartered powers of the corporation, and, ' therefore, not binding tiptin its members; that. he was not “ under charges ” within the meaning of said chapter 1, article' 6, when he filed his resignation, wherefore it-took effect at once without formal acceptance; that the defendants have no power to try the- plaintiff on the charges preferred, and that in any event the restoration of the plaintiff to membership in good standing was a waiver of pending charges and a bar to further proceedings thereon. '

If the by-laws were silent on the subject, the filing- of a resignation by a member would doubtless terminate his membership, and it is probably true, as contended by the plaintiff, that the by-law in question limits the power of the comitia minora to refuse, the acceptance of a' resignation to the specified grounds. Still the by-law contemplates that an acceptance of a resignation is necessary to terminate a membership and it is undisputed that the comitia minora had no meeting after the filing- of the plaintiff’s resignation and before notice of the charges was served upon him. Moreover, we are of the opinion that he was “under charges” when he filed his resignation, and from the time that written charges were filed with the president. The mere fact that the censors had not yet served a copy of the charges on the plaintiff is immaterial. (See People ex rel. Eakins v. Roosevelt, 12 Misc. Rep. 622; 14 id. 531; 149 N. Y. 574.) The by-law in question was evidently adopted to prevent a member, against whom charges had been preferred, from evading the consequences of his offense by resigning in advance of a trial.

The learned justice at Special Term was of -the opinion that the original act of incorporation (Laws of 1806, chap. 138) did not confer power on the defendant to pass the said by-law, and that within the principle of Dartmouth College v. Woodward (4 Wheat. 518) the subsequent acts of. the Legislature relating to’ medical societies, even though accepted by the defendant society, could not have the effect to alter or amend the original charter. (70 Misc. Rep. 615.) We think that that view is. based on a misconception of the scope and purpose of the original act and of the application of the famous Dartmouth College case. The said act of 1806 was entitled “An act to incorporate Medical Societies for the purpose of regulating the practice of physic and surgery in this State.” It provided that the physicians and surgeons in the several counties of the State might meet and, being not less than five in number, organize by the election of officers; and that said societies so organized should thereupon become “bodies corporate and politic.” It also provided for the organization of a corporation by the name of “The Medical Society of the State of New York.” It empowered the societies thus organized to examine students and give diplomas under the hand of the president and the seal, of the society, which should entitle the holder to practice physic or surgery, or both, as should be therein set forth, and provided that after the first day of the following September no person should commence the practice of physic or surgery without having passed an examination and received a diploma from one of the medical societies thus established; that it should be-lawful for the societies established by the act “to make such by-laws, rules and regulations * * * relative to the admission and expulsion of members * *' * as they or a majority of the members at their annual meeting shall think fit and proper: Provided, That such by-laws, rules and regulations * * * be not contrary to nor inconsistent with the Constitution and laws of this State or of the United States, * * *; ” that' it should be within the power of the Legislature “ to alter, modify or repeal this act, whenever they shall deem it necessary or expedient.” It also repealed a former act entitled, “An act to regulate the practice' of physic and surgery in this State,” evidently referring to an earlier act, by which the chancellor, a judge of the Supreme Court or Common Bleas, or a master in chancery, was. authorized to license physicians and surgeons to practice. (See Laws of 1797, chap. 45; R. A. 1801, chap. 137; 1 K. & R. 449.)

It was decided by the Supreme Court in 1835 that the power to disfranchise a member conferred by the act of 1806, which was revised in 1813 (R. L. 1813, chap. 94; 2 R. L. 219), could only be exercised upon common-law grounds, which did not include original disqualification for membership. (Fawcett v. Charles, supra.) The case of People ex rel. Gray v. Medical Society of County of Erie (24 Barb. 570) was decided in 1857. The proposition that a member could only be disfranchised on common-law grounds was reiterated, and it was held that' a regulation of a medical society, prescribing a tariff of fees for medical services to be performed by its members was unauthorized, and that a violation of such regulation did not furnish ground for the disfranchisement of a member. In 1865 the Court of Appeals decided that a. licensed physician could not be denied membership in a county medical society for not having conformed to the conventional rules of the society at a period antecedent to his application, and that there was no power of expulsion, except on common-law grounds, i. e., 1, violation of duty to the society, as a member of the corporation; 2, offenses as a citizen against the laws of the country; 3, breach of duty in respect alilse to the corporation and the laws. (People ex rel. Bartlett v. Medical Society, 32 N. Y. 187.) In 1866 the Legislature'passed an act, being'chapter 445 of .the laws of that year, which provided that it should, be lawful for' any county ’medical society “to establish such rules and regulations for the government of its members as they may deem fit,” etc.; that “each county medical society shall have full power and authority to enforce' discipline among its members and obedience to its rules and regulations, with power to expel or other- ' wise discipline as they may deem most advisable for the best interests of said society,” and that any member aggrieved by the action of á county medical society should have the right to appeal to the medical society of the State of New York representing such county medical society. The said provisions were substantially incorporated in the present Membership Corporations Law. (See Consol. Laws, chap. 35 [Laws of 1909, chap. 40], .§§ 8, 210-214.)

The act of 1866 was obviously intended to enlarge the powers of medical societies, as defined by the said decisions of the courts, and the right to amend, alter or repeal was expressly reserved in the original act. Moreover, the Dartmouth College case has no application to this case for still another reason. The plaintiff was not a party to the contract upon the incorporation of the defendant society in 1806. It has not objected to the subsequent acts of the Legislature having the effect to amend its act of incorporation, but on the contrary has' accepted said amendments and has adopted by-laws upon the authority thereof. The plaintiff’s franchise as a member was not acquired by him until 1904. His contract is to be construed according to the law in force when it was made.

Moreover, the act of 1806 is quite broad enough to justify all that the defendant society has undertaken to do. It was incorporated not alone “to contribute to the diffusion of true ■ science and particularly the knowledge of the healing art,” as appears to have been supposed by the learned justice at Special Term, but to examine and license physicians and surgeons to practice and to régulate the practice of physic and surgery, and the former act on that subject was repealed. The power to pass by-laws relative to the admission and expulsion of members, though conferred in general terms, is to he construed with reference to those broad general powers. Every licensed physician and.'surgeon of good character and having the necessary qualifications was entitled to membership (People ex rel. Bartlett v. Medical Society), but surely the society was not bound to retain in its membership the charlatan, the quack or the fraud, and thereby to certify to. his professional standing. Moreover, its relation to the public and to the profession is such that the mere severing of membership of one guilty of an offense meriting discipline would not serve its corporate purposes. ■ County medical societies are much more than mere private corporations or social clubs. ' The scope of the original act of incorporation and of "the subsequent acts relating to them shows that they were intended to discharge important duties to the public. The fact that the power to license physicians and surgeons has been devolved upon the Board of Regents (Public Health Law [Consol. Laws, chap. 45; Laws of 1909, chap. 49], § 169), does not affect 'the question. It seems plain, therefore, that a member on his admission to the society assumes an obligation, not only to conform to the rules and regulations of the society respecting his immediate relations to it, but as well to observe its standards of professional ethics, and that a breach of that obligation in any respect involves a violation of duty to the" society. Certainly any discreditable act of a member in his professional relations tends to discredit the society. The plaintiff' agreed upon becoming a member to. submit to the discipline of the society for,any act unfavorably affecting “ the character, dignity or interests of the medical profession, or of this Society.” The by-laws, rules and regulations of the society would have no sanction, if its discipline could be evaded by. a resignation.'

Whereupon it follows, not only that the.society has the power to expel for unprofessional conduct, not directly involving the relations of the member as such to the .society, but that it also had the power to pass the by-law that no member should be permitted to resign under charges.

It is probable that the defendant could not try the plaintiff while under suspension. It could have waited until the period of suspension expired or it could have revoked the suspension. Restoration is not the same as original admission ■ to membership. The plaintiff was at all times' a member. His rights as such were temporarily in abeyance. After restoration he probably could not again be tried upon the charges- on which, he was suspended. But the present charges.are entirely different. He was suspended for an act of charlatanry; he is now charged with forging hospital -records to conceal the nature of ’that act. His guilt of the’latter charge cannot be assumed in advance of a trial, and it was, of course, not passed upon when his suspension was removed.

While I have discussed the case from the standpoint -of the plaintiff’s rights and obligations as a member of the defendant society, I am far from suggesting that a court of equity should .enjoin a county medical society from inquiring into unprofessional conduct, either of members or of non-members.

. The order should be reversed, with ten dollars costs and disbursements, and the motion to continue the injunction denied, with costs.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ:, concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten .dollars costs.