(dissenting). Involved in this appeal is the question whether the defendant corporation without conforming to the provisions of its then existing by-laws may amend such *506by-laws and place in sole possession of its board of managers the power to elect its successors and to control any future amendment of the by-laws. That Matter of Mount Sinai Hosp. (250 N. Y. 103) is authority for the proposition that the Legislature may disfranchise members of a charitable corporation and make a board of trustees self-perpetuating cannot be denied and is not disputed.
The plaintiffs are members of the defendant and seek a judgment declaring that by-laws adopted in 1907 are invalid and void. The defendant was organized pursuant to the provisions of chapter 469 of the Laws of 1866. It was empowered thereby “ to form a code of by-laws, not inconsistent with the laws of this State or of the United States, which code when formed and adopted at a regular meeting, shall, until modified or rescinded, be equally binding as this act upon the society, its officers and members.’-’
On April 23, 1866, the first by-laws were adopted by the members of the defendant. These provided, among other things, that the officers were to be chosen annually by ballot from among the members of the Society and that no alteration in the by-laws should be made unless openly proposed at a meeting of the Society entered on the minutes with the name of the member proposing the same and adopted at a subsequent meeting by a vote of two thirds of the members of the Society then present.
It appears from the record before us that these two provisions remained unchanged from 1866 to 1900. In the latter year new by-laws were adopted. These were not “ openly proposed at a meeting of the Society ” and adopted at a subsequent meeting. They were proposed at a meeting of the board of managers on January 11, 1900, and adopted on the same date at the annual meeting of the Society.
The new by-laws radically changed those adopted in 1866. It was provided that the officers should be a president, ten vice-presidents, a secretary, a treasurer and an executive committee of fifteen members. These twenty-eight officers constituted the board of managers which became a self-perpetuating body by virtue of a provision that all officers were to be chosen by the board. The members were deprived of any power to alter the by-laws. No alteration could be made unless proposed at a meeting of the board of managers and then approved by the board at a subsequent meeting.
*507There are indications that in the ensuing years the board had doubts as to the wisdom of its newly acquired power if not the legality thereof. Thus we find at a meeting of the board on December 5, 1906, a special committee on by-laws recommended election each year of seven board members — four to be elected by the board and three by the Society. The minority report favored “ keeping control of the election of its successors in the Board of Managers, without intervention by the members of the Society ”. The views of the minority members of the special committee prevailed and the power remained in the board by a vote of nine to seven.
At the annual meeting of the Society on January 10, 1907, the by-laws were again amended. The subterfuge by which the board elected the officers and members of the executive committee, who constituted the board of managers, was abandoned. The new by-laws provided for a board of managers of twenty-one members of the Society and gave the board “ full power to fill any vacancies which may occur from time to time in its own number ” and the power to elect its successors. These by-laws were not “ openly proposed at a meeting of the Society ” and adopted at a subsequent meeting but were first proposed at a special meeting of the board on December 5, 1906. The final details of the planned changes were agreed upon at a meeting of the board on January 9, 1907 — the day before the annual meeting.
At the meeting of the board on December 5, 1906, a resolution was passed that the by-laws be amended to provide that nominations for members of the board should be made by a nominating committee of six members — three chosen by the board and three elected by the Society. This amendment was adopted at the annual meeting in 1907. This limited power restored to the members was more illusory than real. If the votes of the nominating committee should be evenly divided no nominations could be made and presumably the board would fill the vacancies.
A justiciable issue is presented as to the validity of defendant’s by-laws. The alteration of the by-laws by which the members were-deprived of the power to elect members of the board of managers and to alter the by-laws was not done in accordance with the provision of the then existing by-laws.
Matter of Mount Sinai Hosp. (250 N. Y. 103, supra), to which reference has been made, is not authority to the contrary. That charitable corporation was incorporated in 1852 under a general *508act (L. 1848, ch. 319). The enactment contained a provision — almost identical to that in the act incorporating the defendant — authorizing the corporation “ to make by-laws for the management of its affairs, not inconsistent with the constitution and laws of this state, or of the United States ”. When the hospital undertook to create a self perpetuating board of trustees it did not attempt to do so by amendment of its by-laws but returned to the Legislature, which enacted chapter 17 of the Laws of 1925 authorizing the successors of the respective classes of trustees to be elected by a majority vote of the remaining members of the board of trustees upon the expiration of the terms of the respective classes. The problem posed was succinctly set forth in the opinion (p. 110) as follows: “ We have the act of 1925, challenged as unconstitutional by two members who assert that the board of trustees may not accept the amendment without their consent. They rest on the proposition that, so long as they choose to remain members of the corporation, the Legislature may not, under the reserved power to amend the corporate charter, without their consent, deprive them of their right to vote for trustees.”
The court held that under the reserved power of amendment the Legislature could disfranchise the members and make the board self-perpetuating. Some of the language in the opinion taken out of context might seem to sustain the contentions of the defendant in this action. In substance the court said that members had the bare right to vote for trustees and “ took the risk of a true amendment ”. Here it would seem there were no “ true amendments ” but amendments made in plain violation of the by-laws existing at the time.
The defendant is something more than a membership corporation. It has received broad grants of power from the Legislature. Since 1894 it has been empowered to issue dog licenses in the city of New York and to collect fees for such which are for the use of the Society. Police powers have been granted the officers and agents of the Society. (L. 1894, ch. 115; L. 1895, ch. 412; L. 1902, ch. 495; L. 1950, ch. 303; L. 1953, ch. 180.) No corporation for the prevention of cruelty to animals may be incorporated in this State without the approval of the defendant or an order of a justice of the Supreme Court-dispensing with such approval on notice to the defendant. It actively exercises this right throughout the State. (See Matter of Warren Co. Soc. for Prevention of Cruelty to Animals, 123 N. Y. S. 2d, 419.)
*509If the defendant is operating under invalid by-laws, such a determination should be made. Upon a trial all of the facts could be developed and a determination made, among other things, as to whether the action taken in 1900 was a mere irregularity which has been waived. Upon the record before us it would seem doubtful if life could be breathed into the by-laws of 1900 and 1907 with the passing of any number of years. The plaintiffs contend that the members have been totally deprived of their right to elect members of the board or to alter the by-laws in violation of the act of incorporation and the by-laws adopted by the defendant in 1866. This is denied by the defendant. There is no statutory limitation upon the bringing of an action for declaratory judgment and one brought should be entertained when it will serve a practical end in determining and stabilizing an uncertain or disputed jural question (Kirn v. Noyes, 262 App. Div. 581, 584).
The complaint states a cause of action and the defendant is not entitled to summary judgment. The order should be affirmed.
Dore, J. P., and Boteipt, J., concur with Callahapt, J.; Bastow, J., dissents and votes to affirm in opinion in which Cohpt, J., concurs.
Order reversed, with $20 costs and disbursements to the appellant and motion granted.