Gersh v. Ross

Full title: WILLIAM GERSH and Another, Appellants, v. CHARLES ROSS and Another, as…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 20, 1933

238 App. Div. 552 (N.Y. App. Div. 1933)

265 N.Y.S. 459

Opinion

June 20, 1933.

Appeal from Supreme Court of New York County.

Harry Sacher, for the appellants.

Walter R. Hart, for the respondents.

Present — FINCH, P.J., MARTIN, O'MALLEY, TOWNLEY and GLENNON, JJ.; FINCH, P.J., dissents and votes for affirmance.

PER CURIAM.

Assuming without conceding that the district council had jurisdiction to try the plaintiffs on a charge of slandering officers of the brotherhood, it did not have the right to try them for violations of sections 270 and 271 of the constitution of the brotherhood, the first of which concerns itself with creating dissension among the members and working against the interest and harmony of the brotherhood, and the second of which relates to violations of their obligations. The findings and the punishment meted out to the plaintiffs were general in character. The action taken by the district council may not stand under such circumstances. ( Polin v. Kaplan, 257 N.Y. 277.)

The plaintiffs having been improperly tried were not compelled to exhaust their remedies within the organization, but were entitled to apply to the court for relief. ( Rodier v. Huddell, 232 App. Div. 531.)

It follows, therefore, that the order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion granted, with ten dollars costs.

FINCH, P.J. (dissenting).

The appellants have not exhausted their remedies within the brotherhood. They have the right to appeal to the general executive board and if dissatisfied with their decision may appeal to the general assembly or to the general membership. The case may be distinguished from Rodier v. Huddell ( 232 App. Div. 531), for in that case there was no hearing and the plaintiffs there were simply served with notice of suspension. Here the plaintiffs had a notice of the charges against them and an opportunity to defend themselves or, if they saw fit to question the jurisdiction of the district council, they should question that jurisdiction within the union, and until they have exhausted their remedies within the union, relief asked for should not be granted.

The order appealed from should be affirmed.

Order reversed, with twenty dollars costs and disbursements, and motion granted, with ten dollars costs.