**

*

An "action may be brought by the corporation against any member thereof to recover all assessments which he may neglect or refuse to pay made upon him under the provisions of this article or the by-laws of the corporation. If the corporation is compelled to bring any such action in order to collect any such assessment, it may recover the amount so assessed with fifty per centum thereof to be added thereto in addition to lawful interest, as a penalty for such neglect and refusal to pay within the time required. Any member who neglects or refuses to pay his assessment, may for such reason, or for any other reason satisfactory to the directors or executive committee, be excluded by a majority of the directors or executive committee, as the by-laws may prescribe, from the corporation, and when thus excluded, the secretary shall cancel or withdraw his policy or policies which shall prevent him recovering for any loss or damage sustained after such exclusion. The officers of every such corporation shall proceed to collect all assessments within thirty days after the expiration of the notice to pay the same, and neglect or refusal on their part to endeavor to collect such assessments or to perform any of the duties imposed by this article, shall render them liable individually for the amount lost to any person who loses by their neglect or refusal, and an action may be maintained by such person against such officers to collect such amount. If any member of the corporation shall be excluded therefrom as herein provided and the policy issued to him canceled, the secretary shall forthwith enter such cancellation and the date thereof on the record of policies kept in the office of the corporation and serve notice of such cancellation on the member so excluded either personally or by mail; * * and from and after personal service of such notice, or five days after mailing such notice as herein required, such policy shall be canceled and all liability of the corporation by virtue thereof shall cease and determine; but the owner of the policy shall be entitled to the repayment of an equitable portion of all unearned money to which he has contributed."

It must be clear, from these excerpts from the statute, that it was not contemplated that membership in these local corporations, constituted of solvent real estate owners, was to be terminated by any mere failure on the part of the insured to pay his assessments promptly, and the act provided merely that:

Every "such corporation may make and enforce such by-laws not inconsistent with law for its regulation as may be prescribed by a vote of twothirds of its directors at any meeting thereof." Section 276.

The contract in the case now under consideration was for a term of five years, and, in the absence of any by-law, it is entirely clear that the plaintiff could not have been deprived of his membership, and the benefits of his insurance, without the affirmative action of the board of directors, or of an executive committee, followed by the act of the secretary in giving the required notice. It is true, of course, that the plaintiff had not paid his assessments for a couple of years prior to the fire in October, 1912; but it must be presumed that he was solvent, and the corporation had a cause of action against him, not only for the amount of these assessments, but for interest and a penalty of 50 per cent., and, for all that appears, the corporation may have been entirely content with this security. Indeed, it appears from the evidence that it was content with this security, for its officers took no action to collect the same, nor did they elect to act under the provisions of section 270 and to terminate the policy. The plaintiff, a solvent citizen of the immediate community, owed the corporation a certain sum of money, which the corporation appears to have been willing he should owe, and which was subject to interest charges, and, at the option of the cor

poration, to a penalty of 50 per cent. The corporation, under the law of its being, had a right by certain affirmative action to terminate the contract and to recover any sums which might be due to it, for it was provided that "such member shall remain liable for the payment of any assessment made prior to his exclusion and for the penalty above provided, in case an action has been or shall be brought against him therefor" (section 270), so that the corporation was at all times protected in its rights so long as the officers discharged their duties and attended to the collection of the assessments, while the individual members had a remedy against the officers if they failed in the discharge of their duties.

It is a familiar rule in the construction of statutes that where a new right is created, or a new duty imposed, by statute, if a remedy be given by the same statute for its violation or nonperformance, the remedy given is exclusive (City of Rochester v. Campbell, 123 N. Y. 405, 414, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760), and it seems. to me that the application of this rule to the statute here under consideration precludes the possibility of a lawful by-law making a policy void for failure on the part of the insured to pay the amount of an assessment at the end of 30 days. The statute gave no such right. It particularly defined the conditions upon which the contract between the corporation and the assured should be terminated, clearly making it optional with the corporation whether it would rely upon its legal remedy or terminate the obligation by a compliance with the conditions of the statute. The corporation was, in effect, loaning money to the plaintiff at the legal rate of interest so long as it took no steps to terminate the contract. It elected to continue the contract in existence by not taking the steps prescribed by law for its termination, and the sug gestion that this corporation, thus limited by the law of its creation could enact a by-law which should arbitrarily terminate the relation at the end of 30 days, is to give to the creature a power superior to that of the creator-is to reverse the rule of law that the greater contains the less. Broom's Legal Maxims (8th Ed.) 174.

The case is not dependent at all upon the amendment of the Insur ance Law (chapter 328 of the Laws of 1910) requiring certain provisions in the by-laws of corporations of this character, but hinges entirely upon the proposition that a by-law cannot contravene the provisions of the law creating the body which assumes to enact such by-law. The act under which the defendant was created, through its varying history, has always provided the conditions on which the corporation could terminate its contracts, and there has never been any power in the corporation to enact a by-law which could override the creative act. The judgment appealed from should be reversed.

Judgment reversed, and new trial granted, with costs to appellant to abide event. All concur, except HOWARD, J., who dissents.

151 N.Y.S.-9

(165 App. Div. 323)

FULTON v. INGALLS et al.

(Supreme Court, Appellate Division, Second Department. December 31, 1914.)

1. PLEADING (§ 345*)-MOTION FOR JUDGMENT ON PLEADINGS.

Where the complaint states any cause of action, defendants' motion for judgment on the pleadings must be denied.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1055-1059; Dec. Dig. 345.*]

2. LIBEL AND SLANDER (§ 80*)-COMPLAINT CONSTRUCTION.

Allegations in a complaint that defendants charged plaintiff, a police officer, with a felony, and presented the charges to the police commission, are enough to show that the charges were in writing; for Greater New York Charter (Laws 1901, c. 466) § 300, provides that no police officer shall be removed, etc., until written charges are filed against him, and a person making a complaint that a felony has been committed is required to make oath or affirmation thereof.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. §§ 184186; Dec. Dig. § 80.*]

3. LIBEL AND SLANDER ( 7*)--WORDS ACTIONABle Per Se.

A charge of a felony constitutes a libel per se, and is actionable, unless privileged.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. § 7.*]

4. LIBEL AND SLANDER (§ 51*)—PRIVILEGE-QUALIFIED PRIVILEGE.

A charge of a felony, maliciously made without reasonable cause, destroys a qualified privilege.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 149: Dec. Dig. § 51.*]

5. LIBEL AND SLANDER (§ 25*)-PUBLICATION.

One who requests, procures, or directs another to publish a libel is liable; therefore one who induced the presentation of a false charge of felony to the police commission, for the purpose of having an officer placed on trial, is guilty of a publication.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 107, 108; Dec. Dig. § 25.*]

6. LIBEL AND SLANDER (§ 51*)-PRIVILEGE-ABSOLUTE PRIVILEGE.

The presentation of charges against a police officer not being absolutely privileged, unless a trial by the commission is a judicial proceeding, the malicious presentation of false charges destroys the qualified privilege, in case the proceeding be not judicial.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 149; Dec. Dig. § 51.*]

7. MALICIOUS PROSECUTION (8, 12*) - ARREST FOR OFFICIAL MISCONDUCT RIGHT OF ACTION.

Where defendants, by maliciously presenting charges against a police officer, caused his suspension from duty and temporary disgrace in the department, they are liable for malicious prosecution, if the proceeding was a civil judicial one.

[Ed. Note.--For other cases, see Malicious Prosecution, Cent. Dig. § 5; Dec. Dig. § 12.*]

Appeal from Special Term, Richmond County.

Action by Edward J. Fulton against Charles H. Ingalls and another. From an order denying a motion for judgment on the pleadings, defendants appeal. Affirmed.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued before BURR, THOMAS, CARR, STAPLETON, and RICH, JJ.

John D. Lindsay, of New York City (Alfred W. Haywood, Jr., of New York City, on the brief), for appellants.

Warren C. Van Slyke, of New York City (George M. Pinney, of New York City, on the brief), for respondent.

BURR, J. [1] As the motion for judgment on the pleadings was made by the defendants, we are only called upon, at the present time, to consider the sufficiency of the complaint. We need not now consider whether defendant the Richmond County Society for the Prevention of Cruelty to Children is or is not a governmental agency, and whether it is or is not subject to the rule of conduct applicable to corporations generally. The only allegation in the complaint respecting it is that it is a corporation organized under the laws of the state of New York. We are not advised as to the extent of its powers or obligations.

[2] The complaint does not, in express terms, recite whether the charges, which the defendants presented or caused to be presented to the police department, were in writing or oral. The Greater New York Charter (Laws of 1901, c. 466) provides that:

"No member or members of the police force except as otherwise provided in this chapter [this case does not fall within the exception] shall be fined, reprimanded, removed, suspended or dismissed from the police force until written charges shall have been made or preferred against him or them, nor until such charges have been examined, heard and investigated before the police commissioner or one of his deputies, upon such reasonable notice to the member or members charged, and in such manner of procedure, practice, examination and investigation as the said commissioner may, by rules and regulations, from time to time prescribe." Sec. 300.

By section 301, the police commissioner is given power to issue subpœnas, to administer oaths or affirmations, and the police commissioner and his deputies are authorized to conduct the investigations, which are spoken of as "a trial." Id. §§ 300, 301. The charter further provides that any person, making a complaint that a felony has been committed, may be required to make oath or affirmation thereto.

The complaint further alleges that defendants "took charge of the presentation of and actually prosecuted said charges and each of them before the deputy commissioner." As plaintiff could only be tried upon written charges, and the charges upon which he was tried were "said charges," the word "said" relating to the charges presented, it is a fair inference that the charges which defendants did present were in writing, and not oral. These charges accuse plaintiff of acts criminal in their character. Penal Law (Consol. Laws, c. 40) § 2010. And, in view of the provision that any person, making a complaint that a felony has been committed, may be required to make oath or affirmation thereto, I think that it affirmatively appears that such charges were in writing.

[3, 4] These charges constituted a libel per se, and were actionable, unless it clearly appears upon the face of the complaint that the words 'were absolutely privileged (Tierney v. Ruppert, 150 App. Div. 863, 135 N. Y. Supp. 365), or unless there was no publication thereof in

the legal sense of the term. If they were only qualifiedly privileged, if the defendant published words which were false, from evil motives, and without any reasonable or probable cause to believe said charges, or any of them, to be true, the malice essential to a cause of action for libel may be found therefrom. Newell on Libel & Slander, 477; Moore v. M. N. Bank, 123 N. Y. 420, 25 N. E. 1048, 11 L. R. A. 753; Ashcroft v. Hammond, 197 N. Y. 488, 90 N. E. 1117; Dennehy v. O'Connell, 66 Conn. 175, 33 Atl. 920; Jackson v. Hefferton, 16 Common Bench, New Series, 289; Chaffin v. Lynch, 84 Va. 884, 6 S. E. 474. The complaint contains allegations, not only that the charges were false and defamatory, but that they were maliciously presented and prosecuted, and that "defendants did not have reasonable or probable cause to believe said charges or any of them to be true."

[5] I think also that the words were "published" within the meaning of the law of libel. When these written charges were presented to the police department, the purpose and object of such presentation was to cause plaintiff to be placed on trial thereon; and that this was done with defendants' knowledge and consent sufficiently appeared from the allegations of the complaint that the defendants prosecuted said charges and participated in the trial thereof. A person who requests, procures, or directs another to publish a libel, or connives at or assists in its publication, is liable therefor. Newell on Libel and Slander, 300; Schoepflin v. Coffey, 162 N. Y. 12, 56 N. E. 502.

[6] Were these charges, thus presented, an absolutely privileged communication? Not unless the proceeding before the police commissioner was a judicial proceeding. Personally, I am inclined to think that such was the case. And, if it be contended that it was a civil judicial proceeding, then plaintiff's personal rights were interfered with in consequence thereof, for it appears that, pending said charges, he was suspended from duty without pay, and temporarily disgraced in the department. Willard v. Holmes, Booth & Haydens, 142 N. Y. 492, 37 N. E. 480; Halberstadt v. N. Y. Life Ins. Co., 194 N. Y. 1, 86 N. E. 801, 21 L. R. A. (N. S.) 293, 16 Ann. Cas. 1102; People ex rel. Kasschau v. Board of Police Commrs., 155 N. Y. 40, 49 N. E. 257; Matter of Greenebaum v. Bingham, 201 N. Y. 343, 347, 94 N. E. 853; People ex rel. Shiels v. Greene, 179 N. Y. 195, 199, 71 N. E. 777.

[7] In any event, defendants must take one horn of the dilemma or the other. If the proceeding in which relator was tried was a judicial one, having been instituted maliciously and without probable cause, and plaintiff's personal and property rights having been interfered with pending the same, an action for malicious prosecution will lie. If it was not a judicial proceeding, then an action for libel will lie. All that we are concerned with at present is whether the complaint states any cause of action.

Order affirmed, with $10 costs and disbursements.

THOMAS and RICH, JJ., concur. STAPLETON, J., concurs in result in separate opinion, with whom CARR, J., concurs.

STAPLETON, J. I concur in the result. The sufficiency of the complaint herein is attacked. The complaint alleges that the defend