The opinion of the trial judge in this case is reported in 66 Miscellaneous Reports, 253. It probably sets forth a sufficient statement of the facts herein and reference' is made thereto. The husband of the plaintiff had been a member of the *298Royal Arcanum. That" order had attempted to expel him. The trial judge held that Frank Z. Wilcox was not tried by a tribunal properly constituted for the trial of such charges and that the tribunal selected could not properly try him. With that holding of his I agree fully and for the very excellent reasons which he gives for such holding.
He, however, holds further that its action was not void but voidable and could not be attacked collaterally in this proceeding and that it must stand until it is set aside in a proper proceeding for that purpose. Hence he set the verdict aside. With this second determination of the learned trial judge I do not agree.
The plaintiff’s husband was given a benefit.certificate upon which this action was brought. This certificate was never surrendered and remained in the possession of said Frank Z. Wilcox or the beneficiary thereof, his wife, this plaintiff, until the time of trial.
In my opinion if Frank Z. Wilcox did not have a legal and fair trial, was not properly ■ expelled from this order, legally expelled from this order, this certificate' is good, he died a member of the order and a recovery can be had in this action by the beneficiary therein.
In 1 Freeman on Judgments (4th ed. § 145), referring to the disqualification of the judge, at common law, it is said: “ While it is well settled by the common law that no judge ought to'act where, from interest or from any other cause, he is supposed to be partial to one of the suitors, yet his action in such a case is regarded as an error or irregularity not affecting his jurisdiction, and to be corrected by a vacation or reversal of his judgment, except in the case of those inferior tribunals from which no appeal or writ of error lies. ”
There was no appeal permitted to Wilcox farther than he did carry his appeal in the order; and, hindered and delayed by the defendant, he died before he could bring to trial his proceeding for mandamus brought to compel his reinstatement. (Matter of Wilcox, 123 App. Div. 86.)
In 23 Cyc. 1095, under the title “Judgments,” subdivision e, “ Disqualification of judge,” it is said: “ Incompetence of a judge to act in a case, by reason of his interest in the subject-*299matter, personal or professional, will render the judgment void and open to collateral impeachment.”
What constitutes collateral attack is defined in the same article on “Judgments,” 23 Cyc. 1063, as follows: “On the other hand, if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may he important or even necessary to its success, then the attack upon the judgment is collateral.”
In this case Mrs. Wilcox brings her action upon this certificate in her possession issued by the defendant. The defendant answers that her husband was not a member of the order at the time of his death, pleading his trial and expulsion from the order and the judgment thereon of its order. Whereupon the defendant attempts to show that he was regularly tried and regularly expelled in accordance with the rules, regulations and provisions of the defendant. Then the plaintiff denies that her husband had a legal trial or any trial or that he was regularly expelled or expelled at all, thus attacking the issue tendered by the defendant and collaterally the trial and judgment effected or attempted by the defendant'.
I have not found in this State any authorities directly upon this question, either for or against the contention of the parties here.
In Sanborn v. Fellows (2 Foster [22 N. H.], 473) the court said: “ the principle is well settled, that, wherever a tribunal possesses qualified and limited powers, authorizing them to act in certain specified cases only, and by special modes of proceeding, and the law has provided no mode by which these proceedings can be revised, there the proceedings may' be impeached, collaterally, by showing that the court or magistrates have acted in a case where they have no jurisdiction, or by modes of procedure which they are not authorized to adopt.” A part of the syllabus of the case is as follows: “ Objection may be taken collaterally to the proceedings of any inferior tribunal, where the party grieved has no other remedy.” And see the many cases cited in this particular case.
See, also, Gurnsey v. Edwards (6 Foster [26 N. H.], 224), a part of the syllabus of which says: “Where there is no pro*300vision of law by which the proceedings of a tribunal possessing limited and qualified powers can be re-examined, their doings may be inquired into collaterally.”
See, also, Smith v. Rice (11 Mass. 506) where it says: “ lithe inferior tribunal proceed in a manner prohibited, or not authorized by law, the proceeding is -void.”
I think that the principle set forth in these cases and authorities determines this case. Mrs. Wilcox can bring no proceeding to reinstate her husband in the Royal Arcanum. She can bring in that order under its rules no direct proceedings to further review its action. No right of. appeal is left or permitted to her. The action for reinstatement brought by her husband abated by his death. (123 App. Div. 86, supra.)
In this action the whole proceeding of the attempted trial and expulsion of plaintiff’s husband is brought into this court by the defendant, not by the plaintiff. Hence, defendant cannot complain if this court, in which it, brings its action for determination, review the trial which was had and its determination. I think this court may determine that the trial was illegal, insufficient and unlawful because the tribunal which defendant had created was an unfair and illegal tribunal to do the work and determine the issues which it sought to determine. The defendant itself brings these matters here. It brings its judgment into this court, and it ought not to be heard to complain if this court determines that its action was illegal and unlawful and not a sufficient defense to this action.
We have seen from the authorities quoted that where an opportunity for appeal is not provided for the judgment relied upon by the opposing party may be attacked collaterally.
To hold that this court cannot declare void a judgment of a tribunal like this defendant, which judgment manifestly was unfairly obtained, is to ascribe to the Supreme Court of this State more impotence than I feel constrained to ascribe to it. This court is not thus powerless. The issue is tendered to the plaintiff by the defendant. I think.it has been met.
It is not material in this case that the plaintiff did not in her complaint set forth the alleged determination by the defendant and the expulsion of her husband, and ask to have such deter-*301ruination annulled, vacated and set aside, because the whole matter is brought before the court by the defendant, and surely this court can and must determine the sufficiency of the defense alleged. Certainly this court is not bound to say that anything which is brought in by a defendant and labeled a “ judgment ” is in fact a judgment, and conclusive upon the parties and this court. If it determines that what is tagged a judgment is not a judgment why should it not say so in the very action in which it is urged as a defense ?
It follows, therefore, that the judgment setting aside the verdict of the jury should be reversed and the verdict of the jury reinstated, with judgment thereon for the plaintiff, with costs and disbursements. (See Code Civ. Proc. § 1187; Faith v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 222; affd., 185 N. Y. 556; Herman v. Fitzgibbons Boiler Co., 136 App. Div. 286.)
All concurred, except Kellogg, J., dissenting, in opinion.