FIRST DEPARTMENT, JANUARY TERM, 1875. sion to urge it when it might have been in the applicant's power to correct it by means of further proof as to the fact. It may now, with propriety, be inferred from that omission and the circumstances, that the society was proceeded against by a name not inappropriate as a corporate designation; that the application was resisted by it in that name, and that no denial was contained in the papers of its corporate character; that it was in fact what its acts indicated, a corporation. For those reasons, the appeal should be disposed of, with that fact assumed against the appellant. From the applicant's affidavit, which, in this respect, was allowed to pass entirely uncontroverted, it was shown that he was expelled from the society for an alleged violation of one of its by-laws; and no distinction was either shown, or claimed to exist between membership in the corporation and membership in the society. But, on the other hand, it may be inferred from the papers, that the society and the corporation are one and the same entity. The substance of the application, therefore, was, that by means of the writ of mandamus, the applicant should be restored to his position as a member of the corporation itself. The case of People v. German United Saint Stephen's Church was relied upon as an authority opposed to such a use of the writ of mandamus. But the decision in that case did not go to that extent. For the application which was there made, was so construed as to be limited to a claim to be restored to membership in the ecclesiastical body known as the church, as distinguished from the corporate society itself. It was from the ecclesiastical body that the relator had been expelled, and not from the congregation, as a corporator. And as membership in that was controlled entirely by the discipline of the church, as a merely religious association, and it was in no sense a corporate body, it was held that the writ of mandamus could not be lawfully issued, to restore the relator to membership in it. The application in this case was of an entirely different nature. In substance it was to restore the applicant to membership in a corporation, formed under the statute of this State for benevolent purposes, and that involved a legal and proper use of the writ of mandamus. It was the only mode in which, by legal proceedings, 53 N. Y., 103. FIRST DEPARTMENT, JANUARY TERM, 1875. he could secure such restoration; and its use for that purpose, has been sanctioned and maintained by judicial authority.* The real cause of the applicant's removal and expulsion, was an asserted violation of the thirty-first article of the by-laws. For he was relieved of the other ground of complaint against him, on the production of his affidavit denying its truth. And that violation consisted, according to the by-law, either of going in on a regular strike, or taking a brother member's place, who had been discharged for upholding the laws of the society. The penalty authorized by way of punishment, was expulsion or a fine of twenty dollars, as the society might determine. That was explicitly provided by article thirty-one of the by-laws. It was not both which could be imposed upon the offender, but one or the other. And as it was shown by the affidavit of O'Callahan, produced on the part of the society, that a fine of twenty dollars was imposed, it would seem to follow that there was no authority for adding expulsion to it. The power of the society to expel the applicant could not, under the terms of the by-law, be executed in the case after the fine had been inflicted. By the first section of article thirty of the by-laws, it was provided that no member should be expelled, until he had been notified to appear and show cause; and the applicant swears that he never received any notice or intimation that either charge, found in the report of the committee, was about to be brought against him. This statement was not contradicted by anything contained in the papers produced on the part of the society. The notice produced upon the hearing was not of the character required by the by-law. For it was not served until after the fine was imposed, and did not propose that his conduct should be investigated, but simply that he should appear and pay the fine, or show cause. For what he was expected to show cause, was not stated nor in any way shown. It was not apparently designed to afford him an opportunity to be heard, as to the justice of the fine. For, when he did appear before the society, at a subsequent time, he protested his innocence of the charge, and stated that he could prove it; but no attention, he states, was paid to him by the society. It appeared that he was tried by the committee without notice of the charge on which he *People v. Saint Franciscus Benevolent Society, 24 How. Pr., 216; People v. Erie Co. Medical Society, 25 id., 333; S. C., 32 N. Y., 187. FIRST DEPARTMENT, JANUARY TERM, 1875. was fined, and from which he was not afterward relieved. That was unreasonable and unjust, and could not, either on general principles, or under the language of the by-law, justify his expulsion from membership.* The failure to pay his dues was equally groundless as a reason for expulsion. For he offered to pay those which had accrued on the seventeenth of December, and the society declined to receive them. He had not been lawfully convicted of having done anything up to that time, depriving him of the right to make payment; for his trial and conviction had been conducted without notice to him of the proceeding. And for that reason it was not effectual against him for any purpose whatsoever. The society could not, because of his conviction, decline to receive his dues, and, in that manner involve him, for such a period, in arrears, as to justify his expulsion, as long as no notice was given him, which enabled him to contest or disprove the charges made against him. No reason for his expulsion was shown on the hearing of the application, authorizing or justifying that act under the provisions contained in the by-laws. The order should therefore be affirmed, with ten dollars costs, besides disbursements on the appeal. BRADY, J., concurred. DAVIS, P. J.: I concur on the grounds expressed by Justice DANIELS, and also on the ground that the by-laws under which the relator was expelled, and which, in effect, forbade the relator to work at his trade at such prices as he chose to accept, and compelled him to join in a strike" by punishing him for refusing so to do, are void as against public policy. Order affirmed, with ten dollars costs besides disbursements on appeal. * People v. Saint Franciscus Society, 24 How. Pr, 216. FIRST DEPARTMENT, JANUARY TERM, 1875. THE BOWERY SAVINGS BANK, RESPONDENT, v. EDWARD C. RICHARDS, EXECUTOR, ETC., AND OTHERS, AND ANDREW B. HINE, APPELLANT. Mortgage foreclosure - Contempt in collecting rents after appointment of receiver — Tenant-remedy of receiver against one not a party to the action- Attornment. It is not sufficient, to justify a commitment for contempt: to show an appointment of a receiver of the rents, etc., of mortgaged premises; notice of it to the party alleged to be in contempt, who claimed the rent under an assignment from the owner of the equity of redemption, subsequent to the recording of the mortgage and prior to the appointment of the receiver in the foreclosure suit, to which he was not a party; that thereafter such party collected rent from a tenant of the mortgaged premises, not a party to the foreclosure suit, and that he refused to pay such rent to the receiver. If the property is in the possession of a third person, who claims the right to retain it, the receiver must either proceed by suit in the ordinary way to try his rights, or must make such third person a party to the foreclosure suit, and apply to have the receivership extended to the property in his hands. The proper practice, when the tenant is not a party to the foreclosure suit, is to compel him to attorn to the receiver. APPEAL from two orders; one directing a reference to determine the injury sustained by a receiver appointed in this action, by reason of the appellant, Andrew B. Hine's contempt of court, in collecting rent from the tenants of certain mortgaged premises; the other imposing a fine upon the appellant, and directing his commitment until payment, for a contempt. The four actions in which these proceedings were had, were brought to foreclose four mortgages. A receiver of the rents and profits of the mortgaged premises was appointed. Prior to the foreclosure, the owner of the equity of redemption had assigned the rents of the premises in question to Hine, Cole and Gray (not parties to the foreclosure suits). After notice of the receiver's appointment, Hine collected rents and refused to pay them to the receiver. Albert Smith, for the appellant. The right to proceed against Hine, as for a contempt, depends upon the question, "Whether the receiver, either by himself, or his agents or tenants, was in possession of the property," at the time it is alleged to have been interfered with by Hine, "and not upon the mere right FIRST DEPARTMENT, JANUARY TERM, 1875. to reach such property by creditor's bill?" (Noe v. Gibson, 7 Paige, 513; Albany City Bank v. Schemerhorn, 9 id., 377.) He was not put in possession of the rents and profits by the order appointing him, for this could only reach property in the possession of an adverse party, i. e., a party to the action. (Code, § 244, sub. 1.) No one shall be deprived of property without due process of law. (U. S. Con.) The assignment to Hine, Cole and Gray, vested in them the rents and profits as an actual property and right of possession, distinct and separate from the reversion. (Demarest v. Willard, 8 Cow., 206; Willard v. Tillman, 2 Hill, 274; Moffatt v. Smith, 4 Com., 126.) The tenants had been paying rent to Hine, Cole and Gray, who were therefore actually in possession, as well as by operation of the statute. (3 Rev. Stat. [5th ed.], 30, § 166.) The statute never contemplated holding any one guilty of contempt for maintaining a legal right. (Rev. Stat., § 1, tit. 13, part 3, ch. 8.) A receiver cannot take property that is the subject of the action from one who is not a party to the action, and one not a party to the action is not to be punished as for contempt, for not obeying an order issued in it. (1 Madd. Ch. Pr., 145; Watson v. Fuller, 9 How. Pr., 425; Field v. Ripley, 20 id., 26; McCarthy v. Peake, 9 Abb. Pr., 164; 18 How. Pr., 138.) William G. Wilson, for the respondent. Hine being merely an assignee of rents, took no interest whatever in the land, and had neither possession nor right to the possession of the premises. He was not, therefore, a necessary party either to the suits or to the motion for a receiver. (Huerstel v. Lorillard, 6 Robt., 260; Demarest v. Willard, 8 Cow., 206.) By the appointment of the receiver, the premises passed into the charge and custody of the court. (Steele v. Sturges, 5 Abb. Pr., 442.) The order being regular on its face must be respected while in force, and the receiver holds the rents collected subject to the order of the court. (People v. Compton, 1 Duer, 542.) The conduct of Hine was a contempt, and properly punishable as such. (2 Rev. Stat., 534, § 1, par. 4; Hull v. Thomas, 3 Edw. Ch., 236.) DANIELS, J.: The contempt for which the punishment of the appellant has been directed, consisted in the collection of rents by him, arising |