Opinion
November 25, 1959
In an action for a permanent injunction, the appeal is from an order denying appellant's motion for an injunction pendente lite, and dismissing the complaint on respondents' cross motion. Appellant seeks to restrain respondents from (1) setting aside his election as business representative, and (2) conducting a new election. Order reversed, with $10 costs and disbursements, motion for an injunction pendente lite granted, and cross motion to dismiss the complaint denied. The General Executive Board of the parent Union set aside appellant's election and ordered a new one because one Glenn, a rival candidate, had been disqualified. Glenn had not been employed at the calling of the Union during the year preceding his nomination. The constitution of the local Union expressly provides, without exception, that no member shall be eligible to hold office if he has not been so employed. The General Executive Board created an "exception" to the constitutional provision whereby it rendered eligible individuals unemployed due to illness and physical incapacity. Insofar as concerns this issue, the constitution is unambiguous. The General Executive Board had no power to amend it under the guise of interpretation. As no tangible internal remedy was afforded, the determination of the local Union to conduct a new election was based upon an unconstitutional determination. Appellant is therefore entitled to seek judicial aid ( Tesoriero v. Miller, 274 App. Div. 670, 672; Daley v. Stickel, 2 A.D.2d 287; Sullivan v. McFetridge, 268 App. Div. 962). Wenzel, Acting P.J., Beldock, Hallinan and Kleinfeld, JJ., concur. Murphy, J., deceased.