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Ewald v. Medical Society of New York County

Supreme Court of New York, Appellate Division

April 7, 1911

THE MEDICAL SOCIETY OF THE COUNTY OF NEW YORK and H. SEYMOUR HOUGHTON and Others, Appellants, and J. RIDDLE GOFFE and Others, Defendants, as Members of and as Constituting the Board of Censors of the Medical Society of the County of New York.

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APPEAL by the defendants, The Medical Society of the County of New York and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of February, 1911, continuing an injunction and restraining the defendants pendente lite from trying the plaintiff on charges.


Almuth C. Vandiver, for the appellants.

Daniel P. Hays and Samuel I. Frankenstein, for the respondent.


The plaintiff became a member of the defendant medical society in January, 1904. On March 10, 1910, charges were preferred against him by a number of physicians to the effect

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that in a scientific article, contributed by him to be published by a hospital of whose staff he was a member, he had described certain operations as having been performed by him, which in fact he had never performed. He was tried and found guilty by the defendant's board of censors and was suspended from membership until June 1, 1911. On September 30, 1910, written charges were filed with the president of the defendant society by one of its members to the effect that during the pendency of the first charges the plaintiff and another physician had changed the records of the Sydenham Hospital for the purpose of substantiating the statements made by plaintiff in the said article, which acts, it was claimed, unfavorably affected the dignity, character and interest of the medical profession, of the defendant society and of its members. A copy of said charges was not then served upon the plaintiff as he was then under suspension. His associate, however, was tried on them and he was present and testified at the trial and heard the charges read. The plaintiff's said associate was found guilty and his expulsion recommended by the censors on December 12, 1910, and on that day a resolution of the society was adopted restoring the plaintiff to membership in good standing on and after that date. On December 14, 1910, the plaintiff tendered his resignation, which was not accepted, and on December 17, 1910, he was served with a notice of said charges and that a meeting would be held on December thirtieth following for the purpose of considering them. Whereupon this action was brought.

If the plaintiff is still a member of the society this action is premature. (See Moyse v. New York Cotton Exchange, 143 A.D. 265, and cases cited by Mr. Justice SCOTT, decided by this court in this department March 10, 1911.) It may well be doubted whether equity will entertain jurisdiction at the suit of a non-member to restrain the proceedings of a membership corporation, like the defendant society. The plaintiff may ignore the proceeding, and, if he is libeled, sue for damages. (See Fawcett v. Charles, 13 Wend. 473.) However, assuming without deciding that upon the plaintiff's theory the case is one for equitable cognizance, we are of the opinion that the injunction should have been denied for the reason that the

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defendants have jurisdiction to try the plaintiff on the charges preferred.

In his application for membership the plaintiff expressly agreed, 'if elected, to comply with all rules, regulations and by-laws passed by Society, or adopted for its government.' Among the pertinent provisions of the defendant's by-laws the following may be noted: 'All resignations shall be in writing and shall be sent to the Secretary and referred to the Comitia Minora at its first meeting after their receipt. If accepted, the member thereby severs all connection with The Medical Society of the County of New York, the First District Branch, and The Medical Society of the State of New York, and relinquishes all right and title to any share in their property. No resignation shall be accepted from a member owing dues or assessments, or under charges.' (Chap. 1, art. 6.) 'The censors shall take cognizance of all charges preferred against a member. Charges against a member shall be presented to the President in writing, and by him referred to the censors, who shall meet, examine the same, and the evidence thereon.' (Chap. 6, art. 4.) 'There shall be three degrees of discipline: censure, suspension and expulsion.' (Chap. 6, art. 6.) 'The Constitution, By-laws, and resolutions of this Society, and the Constitution, By-laws, rules and regulations of The Medical Society of the State of New York, which have reference to county societies, shall be binding on the members of this Society; and any intentional violation or disregard of the same shall be cause for discipline. The commission of any act which unfavorably affects the character, dignity or interests of the medical profession, or of this Society, or any one or more of its members, shall also be cause for discipline.' (Chap. 6, art. 10.) When the plaintiff became a member of the defendant society its by-laws provided for amendment, alteration or addition thereto by a majority vote of its members at annual meetings. The plaintiff does not question the regularity of the adoption of the present by-laws or deny that he is bound by them, provided the defendant had the power to adopt them. His contention, in brief, is that the society has no power to retain a member for the sole purpose of trying him on charges and expelling him; that any by-law purporting to give it that

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power is beyond the chartered powers of the corporation, and, therefore, not binding upon its members; that he was not 'under charges' within the meaning of said chapter 1, article 6, when he filed his resignation, wherefore it took effect at once without formal acceptance; that the defendants have no power to try the plaintiff on the charges preferred, and that in any event the restoration of the plaintiff ...

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