In re Haebler 36 N.Y.S. 427, 15 Misc. Rep. 42

(15 Misc. Rep. 42.)

In re HAEBLER.

(Superior Court of New York City,

General Term.

December 18, 1895.)

Exchanges—Suspension of Member.

An exchange cannot suspend a member, under a by-law authorizing it, for nonfulfillment of a contract, before the rights of the parties to the contract Jiave been settled by an action, such by-law being contrary to public policy; nor under a by-law providing therefor in case a member is accused of a proceeding inconsistent with just and equitable principles of trade, the exchange having taken no steps to carry out its purpose, recited in its charter, “to inculcate just and equitable principles of trade.” People v. New York Produce Exchange (Super. N. Y.) 29 N. Y. Supp. 307, followed.

Appeal from special term.

Application by Ernest T. Haebler for a writ of mandamus against the New York Produce Exchange. The application was granted, and defendant appeals.

Affirmed.

*428The opinion of GILDERSLEEVE, J., at special term, is as follows:

The law as laid down in the prevailing opinion in the case of People ex rel. Johnson v. New York Produce Exchange, 8 Mise. Rep. 552, 29 N. Y. Supp. S07, must control the special term of this court until it shall have been disapproved by a higher tribunal. The complaint and proceedings in that case were practically the same as in the one before me; and the facts so nearly approach those herein disclosed that I feel constrained to regard it as a controlling authority in the matter of this application. In both cases the complaint charged “proceedings inconsistent with just and equitable principles of trade,”—in the one case, by “breach of” a specified contract; in the ether, by failure to comply with “the terms of” a specified contract. In both cases the board of managers proceeded, in regular conformity with the by-laws, to investigate the matter; and in both cases they concluded that the accused party had, in their opinion, been guilty of conduct inconsistent with just and equitable principles of trade; and in both cases the accused was suspended, in perfect accordance with the by-laws. The two cases, therefore, being practically identical, and the general term of this court, having decided, in the Johnson Case, that the Exchange was without jurisdiction to suspend the accused, I have no other alternative than to grant the application herein asked for. The application granted, with $50 costs and disbursements to the applicant.

Argued before FREEDMAN and McADAM, JJ.

Baldwin & Blackmar (Abel E. Blackmar, of counsel), for appellant.

Shiland & Honeyman (Robert B. Honeyman, of counsel), for respondent.