Although it was not distinctly alleged in the affidavits used in support of the application for a peremptory writ of mahdamus, that the society was a corporation, they must be accepted as sufficient in that respect in the disposition of the present appeal, because no objection was-made to them as defective on that account when the application was heard upon them by the special term.
If it had then been made, it is probable that it could have been removed by supplying legal evidence of the fact at that time, under such terms as could then have been prescribed. For that reason the objection should now be treated as waived, by the omission to urge it when it may 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 *87the 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 these 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, 53 N. Y. 103, 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 corporation. 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 he could secure such restoration, and its use for that purpose has been sanctioned and maintained by judicial authority. People v. Saint Franciscus Benevolent Society, 24 How. 216; People v. Medical Society, 25 id. 333; S. C., 32 N. Y. 187.
The real cause of the applicant’s removal and expulsion was an *88asserted 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 not going in on a regular strike, or taking a brother member’s place, who has been discharged for upholding the laws of the society.
The penalty authorized by way of punishment, was expulsion, or a fine of $20, 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 0. Callahan, produced on the part of the society, that a fine of $20 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 any 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 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 thg by-law, justify his expulsion from membership. People v. Saint Franciscus Society, 24 How. 216.
The failure to pay his dues was equally groundless as a reason for *89expulsion, for he offered to pay those which had accrued on the 17th of December, and the society declined to receive them. He had not been lawfully, convicted of having done any thing 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. Ho 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 $10 costs, besides disbursements on the appeal.