Eliza Cunningham, Plaintiff, v. Supreme Council of the Royal Arcanum, Defendant

Eliza Cunningham, Plaintiff, v. Supreme Council of the Royal Arcanum, Defendant. Second Department, December 18, 1914. Membership corporation — fraternal organization — change of procedure for expulsion of members — impairment of vested rights — expulsion for crime of perjury. A change of procedure by a fraternal organization for the expulsion of members so that a trial was dispensed with when the offending member had been convicted of a felony or misdemeanor and providing that a certified copy of the judgment of conviction and final sentence thereon would be deemed sufficient evidence for expulsion does not impair any vested rights of its members, and an expulsion of a member who had become such prior to the change in procedure upon the ground that he had been convicted of the crime of perjury is lawful. A by-law of such an organization providing that “ A member who shall be guilty of any immoral practice or improper conduct, violative of his duties, and unbecoming his profession as a member of this Order, shall upon conviction thereof, be suspended or expelled,” authorizes the expulsion of a member after his conviction for the crime of perjury. Such an organization has an inherent right to expel members for the crime of perjury. Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. Frank D. Wynn, for the plaintiff. Howard C. Wiggins, for the defendant. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: This submitted controversy presents the single question whether the expulsion of Cunningham by the defendant, a fraternal benefit society, was lawful. When Cunningham joined the defendant, the procedure for expulsion prescribed investigation by an inquiry committee, preference of charges if justified, and a trial before a stated meeting of the council. While Cunningham was a member of the defendant, the procedure was changed so that a trial was dispensed with when the member had been convicted of a felony or a misdemeanor, in that a certified copy of a judgment of conviction and final sentence thereon was deemed sufficient evidence for expulsion. Thereafter Cunningham was indicted for making false affidavits, whereby he secured a pension from the United States government, pleaded guilty and served a sentence. Complaint was thereupon made against Cunningham, which was referred to the inquiry committee. That committee investigated the complaint, notified Cunningham, gave him. opportunity to present rebutting evidence, upon his failure to do so, reported charges to the council, which were forwarded to the supreme regent together with a certified copy of the said judgment and sentence of conviction. The supreme regent, pursuant to authority vested in him, expelled Cunningham. The defendant contends that the laws of the society conferred no right of summary expulsion and that there was an impairment of Cunningham’s valid rights by the after-enacted law as to the necessary proof of conviction. I think that there was an inherent right of expulsion for the crime of perjury. (King v. Mayor of Liverpool, 2 Burr. 732; People ex rel. Bartlett v. Medical Society, 32 N. Y. 187, 194; Commonwealth v. St. Patrick Benevolent Society, 2 Binn. 441, 448.) Moreover, I think that the commission of such a crime was within the language of section 2 of the by-laws as it existed when Cunningham joined the order, and which provides as follows: “A member who shall be guilty of any immoral practice or improper conduct, violative of his duties, and unbecoming his profession as a member of this Order, shall upon conviction thereof, be suspended or expelled. ” It appears that the defendant is “carried on by its members as a charitable, fraternal and social enterprise without any element of financial profit, to unite fraternity men of good moral character, who are socially acceptable, for their social, moral and intellectual education, to give all moral, social and material aid in its power to its members,” etc. I think that there was no impairment of vested right. (Howard v. Moot, 64 N. Y. 262; Lazarus v. Met. El. R. Co., 145 id. 581; Southwick v. Southwick, 49 id. 510.) All that the after-enacted by law changed was to make proof of judgment of conviction and sentence for a crime “ sufficient ” evidence to justify expulsion. There was a change of procedure, and, to my mind, one entirely proper and reasonable.. The conviction of Cunningham was an adjudication between the individual and the United States that he was guilty of this crime. (Hawker v. New York, 170 U. S. 189.) I see no good reason why the defendant, in the face of what was conclusive proof of the commission of a crime, should ordain that there must be a trial by it of that offense. There was no provision, even, that the record .of conviction should be conclusive, but “ sufficient,” evidence. Indeed, Cunningham was afforded opportunity by the inquiry committee to present rebutting evidence. There must be judgment for the defendant in accord with the terms of the stipulation. Burr, Thomas and Putnam, JJ., concurred; Carr, J., not voting. Judgment for defendant in accord with the terms of the stipulation.