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August 28, 1968

Max Sands, as Administrator of the Estate of Solomon Salzhandler, Deceased, Plaintiff,
Peter J. Abelli et al., Defendants

Cannella, Judge

The opinion of the court was delivered by: CANNELLA


Action pursuant to 29 U.S.C. §§ 411(a)(2), 412 and 529 to recover damages.

 The sole issue before this court *fn1" is the assessment of damages arising out of the acts which form the basis for this suit. It is unnecessary to duplicate the factual presentation upon which the Court of Appeals predicated its decision and this will be avoided except to the extent required for a cogent treatment of the questions of damages as presented by the various claims.

 Suffice it to say that Mr. Salzhandler, a member of Local 442, had accused Mr. Webman, the then President of said Local and Business Agent of District Council 9, of improper financial activities. Webman filed charges against the plaintiff with the District Council Trial Board and had Salzhandler stripped of office and suspended from union activities for five years. Salzhandler sued in District Court, and after a trial and dismissal, the Court of Appeals reversed the lower court and directed entry of judgment and assessment of damages. This Court acting non-jury, heard evidence on the question of damages.

 Plaintiff claims the following damages as to defendant District Council 9: (1) loss of wages as a painter; (2) compensatory damages arising out of the assault and battery of May 15, 1961; (3) compensatory damages for mental suffering caused by the wrongful disciplinary action; (4) compensatory damages for the stroke and subsequent paralysis; (5) exemplary damages; (6) counsel fees.

 In addition, plaintiff asserts a claim against Local 442 for lost wages as financial secretary.

 Finally, plaintiff claims compensatory and exemplary damages against Isadore Webman.

 The plaintiff, also, urges this Court to consider the existing New York law in this area and to invoke its pendant jurisdiction to grant relief if it is determined that the Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act, hereinafter LMRDA) *fn2" does not provide an adequate remedy in all respects.

 The threshold question presented is whether by reason of the death of the plaintiff *fn3" and substitution of the Administrator of his estate, the claims asserted abate. This Court determines the issue in the negative. The very direction of the Court of Appeals would appear to preclude a finding otherwise. "We . . . direct entry of judgment for the plaintiff . . . ." *fn4" The assessment of damages does not for purposes of abatement render the action in a state of pendency at the time of death.

 Assuming, arguendo, the pendency of the action at the time of death the case for abatement fails on other grounds. Although there appears to be no case squarely on point under the LMRDA, the better reasoned cases hold that where a federal statute grants a right to an individual, whether it be deemed a personal or property right, to deny the remedy on the theory of abatement would be, "perpetuation of a policy which has now had its day." *fn5" Without belaboring the point, the sound approach is clearly in favor of survivorability where, as here, the statute is designed to have a deterrent effect. Were the Court to hold otherwise, the incentive for discipline of a more permanent nature would be manifest.

 Turning to the substantive claims, the Court will consider first the plaintiff's claim for loss of salary as Financial Secretary of Local 442. The plaintiff urges this claim against the Local alleging total damages of $6,755.00 for the period April 1, 1961 to December 14, 1964. The defendant contends that the LMRDA grants no right to union officers who seek to recover lost salary arising out of said position, albeit, such loss is incident to wrongful disciplinary action by the union. The Court is not persuaded by this argument. On the contrary, the better reasoned cases hold that where wrongful disciplinary action results in a loss, appropriate relief will be granted by the courts. *fn6" The defendants would construe the statute in so strict a fashion as to leave without its protection union officers, the very people who perforce of their particular knowledge and associations are most capable of participating meaningfully in the democratic process within the union. This was not the intent of the Act, and this the Court will not do.

 The Court finds by the fair preponderance of the credible evidence that the plaintiff, now deceased and represented by the Administrator of his estate (hereinafter "plaintiff") suffered damages of lost salary as Financial Secretary of Local 442 as a proximate result of the said wrongful discipline imposed. Accordingly, the loss is determined to be $1,625.00, computed as follows, $25.00 per week for sixty-five weeks beginning on or about April 2, 1961, the date of his removal, and terminating on June 30, 1962, which would have been the last day of his tenure in office.

 The plaintiff sought to establish that an additional $10.00 per week "expense money" was, in fact, an additional salary payment. Further, it was claimed that had Mr. Salzhandler not been disciplined in the fashion in which he was, his re-election for another three year term as Financial Secretary was virtually assured. The Court is not persuaded on either issue. Damages must be more than a mere speculative loss, and must be shown to have been proximately caused.

 The Court finds that the plaintiff has failed to meet his burden of proof on the issue of "expense money." Once relieved of his post, Mr. Salzhandler was also relieved of whatever expenses and obligations accompany that responsibility. The court is not persuaded by a fair preponderance of the credible evidence that the $10.00 per week designated ...

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