Opinion
Argued October 16, 1933
Decided November 28, 1933
Appeal from the Supreme Court, Appellate Division, First Department.
Edgar B. Bronson, Jeremiah T. Mahoney and Charles Maitland Beattie for appellants. Donald Marks for respondent.
Plaintiff sued for damages during the time extending from March 24, 1925, to May 17, 1926, for his expulsion from a labor union resulting from a conspiracy alleged to have been formed during the months of October, November and December, 1924. This conspiracy was consummated by plaintiff's expulsion on or prior to March 24, 1925.
An issue of fact is presented relating to the falsity of the charges preferred against plaintiff and the verdict in his favor on this issue is supported by evidence.
The action has abated as to defendant Judge and we can find no evidence tending to connect defendants Moncur, Jose and Fessler with any conspiracy resulting in damage to plaintiff during the time alleged in the complaint.
Sufficient evidence was produced to take the case to the jury on the issue of the participation by defendants Halkett, Kelso and Quigley in the conspiracy which resulted in damage to plaintiff during the time alleged in the complaint. Hearsay and other incompetent testimony of a highly prejudicial character was admitted against them. Plaintiff's witness McAdam was allowed to state to the jury that a member of the union had informed him that that member had received orders from defendants Judge and Kelso to exclude plaintiff; his witness Cavanaugh testified that in the summer of 1926 another member had asked this witness to start a movement to get rid of plaintiff; his witness McGee gave evidence that in November, 1926, a member, other than a defendant herein, had called plaintiff vile names and that another such member had advocated his expulsion. This testimony, in addition to the introduction of the excerpts from the official journal of the organization published in September, 1926, was incompetent and, from the size of the verdict against defendants, must be deemed to have inflamed the jury.
The judgment should be reversed and the complaint dismissed as to the defendants Moncur, Jose and Fessler with costs; a new trial granted as to the defendants Halkett, Kelso and Quigley with costs to such appellants to abide the event. (See 263 N.Y. 670. )
POUND, Ch. J., CRANE, LEHMAN, KELLOGG, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Judgment accordingly.