Dinkel agt. Wehle. ing upon it ever been given. No such judgment as appealed from exists. The sureties named in the undertaking given could not be held liable on the judgment which, in fact, exists; they never bound themselves to pay that judgment. There was, therefore, no stay. The undertaking required by the Code of Civil Procedure is an undertaking "in the action from the judgment entered" (See secs. 3213, 3046). A surety is not held beyond the precise terms of his contract (Walsh agt. Bailie, 10 Johns., 180; Pennoyer agt. Watson, 16 Johns., 100). The contracts of sureties are to be construed by the courts strictly in their favor (Rochester City Bank agt. Elwood, 21 N. Y., 88; see, also, Sailly agt. Elmore, 2 Paige, 497; Supervisors of Albany agt. Dorr, 1 Denio, 268). An undertaking upon an appeal which is insufficient in amount, will not stay the proceedings of the successful party (Sternhaus agt. Schmidt, 5 Abb., 66). J. F. DALY, J.-In Parfitt agt. Warner (13 Abb., 476) the supreme court held that where an undertaking on appeal was defective, but not void, the proper course was for the respondent to move to set it aside, but not to disregard it, and proceed to enforce his judgment. The action was for a foreclosure of a mortgage, and the plaintiff was secured by the mortgaged property. This is an important consideration. In ordinary actions for the recovery of money the defendant may gain time to dispose of his property by putting in an undertaking which affords no security. While plaintiff was making his motion to set aside the worthless instrument, his security in the judgment debtor's property might be gone. In Sternhaus agt. Schmidt (5 Abb., 66) this court at special term held that an undertaking which did not comply with the Code effected no stay. The undertaking and notice of appeal in this case by wrongly describing the judgment, failed to comply with the Code. The proper description of the judgment is the most essential part of the notice. The sureties might not be liable Hutchinson agt. Lawrence. upon an undertaking reciting an appeal from a judgment which did not exist, as described in the instrument. At all events, they had a point on which to dispute their liability until determined by the court of last resort. The appellant, in tendering such an undertaking, offered respondent instead of security a lawsuit. It is hardly proper under such circumstances to hold respondent to the obligation to respect the attempt to stay his proceedings and to assume the burden of moving to set the defective undertaking aside. He is at least entitled to secure himself if the appellant does not secure. him by a proper undertaking. These general observations apply to all cases of this kind. There is no fear of the respondent's security being affected by delay in this case, and there can be no question that the defect in the undertaking here was the result of misinformation. While I cannot grant the motion to set aside the execution, it may not be out of place to say that an amendment would be allowed of course, and without terms. Motion denied, with ten dollars costs to defendant to abide event of appeal. SUPREME COURT. WILLIAM J. HUTCHINSON agt. FREDERICK N. LAWRENCE, president of the New York Stock Exchange. Stock exchange membership - Proceedings for expulsion — Rights of member Courts authorized to interfere for the purpose of seeing that the rules of such association are fairly and honestly administered. In every proceeding before a club, society or association, having for its object the expulsion of a member, the member is entitled to be fully and fairly informed of the charge and to be fully and fairly heard. The plaintiff, a member of the New York Stock Exchange, an incorporated voluntary association, having been charged by a special committee of investigation, after taking voluminous testimony, with being guilty of improper practices, the governing committee of the exchange, who are empowered by its constitution to expel members adjudged to have Hutchinson agt. Lawrence. been guilty of obvious fraud, preferred charges against him based upon the testimony thus taken. He was permitted to make statements and explanations before the investigating committee, and to cross-examine the witnesses produced. Then he appeared before the governing committee and read his defense at great length. At a subsequent meeting on June sixth, in his absence, two accusing witnesses were examined by the governing committee, who then negatived a proposition that these witnesses be brought again before them to be cross-examined by the accused member: Held, first, that though the governing committee is not bound on the trial of a member for misconduct by the ordinary rules which obtain in judicial proceedings, yet the court should interfere for the purpose of holding the association to a fair and honest administration of its rules. Second. The action of the governing committee on June sixth was not just or fair to the accused member in either a legal or equitable sense, and defendants should be restrained pending the action from asserting against plaintiff the resolution of expulsion passed upon him. N. Y. Chambers, March, 1884. Joseph H. Choate and Robert Sewell, for plaintiff. James C. Carter, Stephen P. Nash and Julien T. Davies, for defendants. LAWRENCE, J.-It was held by the general term of the court of common pleas, in the case of White agt. Brownell (2 Daly, 329), that as the privilege of membership of a voluntary unincorporated association is not conferred by the sovereign power, but is created solely by the organization itself, courts of law cannot compel the admission of an applicant for membership, nor interfere to restore to membership one who has been expelled for non-compliance with the conditions upon which membership is made to depend; that the members of such an association are bound by its rules, when not in conflict with the law of the land, and that the courts can interfere no further than to hold the association to a fair and honest administration of those rules; also that, therefore, to warrant the granting of an injunction to restrain the officers of a voluntary unincorporated association from carrying Hutchinson agt. Lawrence. into effect a resolution or vote suspending a member from the privileges of the association it must appear that the suspension was in violation of the constitution, rules or by-laws, for unless they were violated by the proceedings against him he could have no ground of complaint. It was also held by the special term of this court, in the case of Olery agt. Brown (51 How. Pr., 92), that where there is open to an expelled member of a voluntary association a remedy under its constitution and laws for a review of the proceedings for his expulsion, and, in case of error, for his restoration, and the association is not a partnership, equity will not interfere. The New York Stock Exchange is an unincorporated voluntary association, but the seats therein are worth in cash, as shown by the affidavits in this case, at least $30,000, and the privileges attaching to membership in the board are of great value. The twentieth article of the constitution provides as follows: "Members guilty of obvious fraud: Should any member be guilty of obvious fraud, of which the governing committee shall be the judge, he shall, upon conviction thereof by a vote of two-thirds of said committee present, be declared by the members to be expelled, and his membership shall escheat to the exchange." By the second article of the constitution the government of the exchange is vested in the governing committec, composed of the president and treasurer of the exchange and of forty members elected as therein provided. The plaintiff in this case claims that he has been illegally and unfairly expelled from the stock exchange, and he has obtained an injunction that the said exchange, and the president and officers thereof, show cause why during the pendency of this action, and until final judgment is entered therein, they should not be enjoined and restrained from excluding the plaintiff from the said exchange, and from asserting against him the resolution of expulsion passed upon him, and from interfering with the exercise and enjoyment by him of his rights and privileges as Hutchinson agt. Lawrence. a member of the said exchange, and with the transaction by him of his business in the said exchange as a member thereof, and from transferring or disposing of his seat or membership in the said exchange, and from excluding him from or interfering with the exercise by him of the right to vote at any election of officers of the said exchange, or at any other meeting thereof. The order contains, also, a clause for a temporary injunction until the hearing and determination of the motion to be made under such order. The plaintiff claims that while it is not within the power of a court of law or equity to retry the question on its merits as to whether a member of the stock exchange has been properly expelled, he is entitled to the decision of the court upon the question whether he has been fairly treated according to the constitution which he has signed and agreed to observe, and according to the rules of natural justice and fair play, which ought to regulate all proceedings, judicial in their character, which are not exercised by a court vested with full judicial powers, but by a body selected by the agreement of the parties. The defendant claims that the rules applicable to proceedings in ordinary courts of justice have no application to proceedings of this character, and that the trial contemplated by the constitution of the stock exchange is one to be had before the governing committee of that body, according to such methods as it may choose to pursue, subject, however, to the conditions that this committee must exercise the authority conferred upon it honestly and in good faith, and that they must afford to the accused party a full and fair opportunity to defend himself. I think that, under the decisions to which I have already referred, it must be conceded that the governing committee of the stock exchange is not bound, on the trial of a member for misconduct involving his suspension or expulsion, by the ordinary rules which obtain in judicial proceedings; but it is equally obvious, from the opinions rendered in those cases, that the courts are authorized to interfere for the purpose of holding the association to a fair VOL. LXVII 6 |