Page v. Cohen

The action is brought to recover wages which the plaintiff claims are due under contract of employment. The plaintiff was employed as physician to a lodge of the Foresters of America for one year and to be paid quarterly at the rate of one dollar per annum for each member. During the third quarter of the year 1907 an attempt was made to remove plaintiff for a dereliction of duty as lodge physician.

He was tried by a committee of this lodge (Long Island No. 34) and removed. Plaintiff claimed that this lodge had no right to try him as he was a member of another lodge. He appealed to a higher body and the removal was reversed. In the meantime plaintiff assigned his claim for wages or com•pensation for one quarter to one Holmes who brought suit thereon. The defendant in that action alleged as defenses, plaintiff’s removal as physician of the lodge; a determination of the matter by the arbitration committee; a justifiable discharge by the lodge; and the Statute of Frauds. After a trial, during the course of which defendant moved to dismiss upon the ground that the action was barred by the action of the arbitration committee, the court rendered judgment for defendant upon the merits. The plaintiff appealed to the *569Appellate Division of the Supreme Court and the judgment was affirmed. In the meantime as above recited the decision of the arbitration committee was reversed. In'order to enforce this decision plaintiff obtained a peremptory writ of mandamus compelling this lodge to recognize and make effectual the decision of the 'Supreme Court of Appeals of the order, to return fifteen dollars deposit and recognize plaintiff as a member of the order. It had nothing to do with plaintiff’s restoration to his .position as his term had then expired. It did, however, compel the defendant to nullify its decision removing plaintiff. The result of all this is that plaintiff was not removed. His removal is null and void; therefore, he was court physician during all his term of employment. He was ready and willing to perform his duties as such.

The claim assigned was for wages or compensation. The court has decided against the assignee. That does not affect the claim for the next quarter for which this action is brought. I think the court was in error in directing a verdict upon the ground that the judgment in the Holmes suit was a bar to this suit.

Kelly and Clark, JJ.,. concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.