People ex rel. Miodownick v. Independent Order Brith Abraham of United States of America

116 A.D. 364, 101 N.Y.S. 866, 1906 N.Y. App. Div. LEXIS 2675

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1906
• Status: Published

Opinion

Patterson, P. J.:

The relator applied to the Supreme Court for a peremptory or alternative writ of mandamus, directing the respondent to restore him to his rights, privileges, immunities and benefits as a member of the respondent corporation, which is a fraternal benefit society incorporated under, the laws of the State of New York. He sets forth in his petition that he had been itnlawf ally expelled from that society for the non-payment of dues and states in detail circutnstances and asserted facts to support that allegation. In affidavits presented to the court in answer to the petition, the president and the financial secretary of the respondent make denials of many of the statements of the petition and set forth matter which, if true, would indicate that the relator’s expulsion was justified.

The learned judge at Special Term denied the motion apparently on the ground that the relator was removed “in the method provided for by the constitution and by-laws of the organization.” That may be true, so far as mere formal procedure was concerned, but there still remained a controversy as to facts which involved the right to remove. It is quite apparent that if the relator’s story is true, his expulsion from the respondent society was illegal, and on the papers now presented to the court he was entitled to an alternative writ.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for an alternative writ of mandamus granted.

Ingbaham, McLaughlin, Claeke and Houghton, JJ., concurred.

Order reversed, with ten dollara costs and disbursements, and motion for alternative writ granted. Order filed.