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cause now is the time, more than ever, when the integrity and respect for the courts must be upheld by all good citizens. For it is in times like these, when disorder shows its threatening hand, that the courts stand out as the bulwark of orderly and organized society, and unfair and unjust criticism of the courts and judges at this time above all times cannot be productive of any good."

He was asked by the court:

"Have you any idea in your mind, even remotely, that this court has failed to render its decision honestly and according to its best judgment?"

He answered:

"I have not.

"The Court: Then the statement does not represent your own reflected state of mind?

"Mr. Markewich: Not only that, but, if your honor please, as I have said, after Judge Hedges spoke, when I had a chance to reflect, I rose and said very distinctly: 'I do not want any one in the audience to leave with the reflection that I entertain anything but the most implicit faith in your honor's honesty and integrity."

The learned United States District Court in its opinion (261 Fed. 537) made part of this record, said:

"In the case at bar, defendant has made the fullest apology which words can convey. The publicity of the proceeding, the humiliation which has come upon him, both as a citizen and a public officer, the great regret which I am satisfied he genuinely feels, have measured out to him a punishment severe within itself. He has frankly stated that he has learned a lesson bitterly taught, and fine or imprisonment will do no more. As it is, the files of this court will permanently contain the record of his wrongful conduct-an ever unhappy reminder. In view of his contrite attitude and his complete apology, it will meet the ends of justice that his conduct, so far as concerns his contempt of court, be severely censured, and such censure is herewith administered."

Charged as this court is with the duty of supervising the professional conduct of its officers, the members of its bar, we cannot overlook the serious character of the offense of which respondent has been found guilty. We can add little to what has been said by the learned referee and the judge of the United States District Court. We trust respondent is sincere, and has indeed learned his lesson. In view of his character, previous conduct, and public service, and his openly expressed contrition and apology, we are of the opinion that the ends of justice will be satisfied with the censure of this court, which is hereby administered.

Settle order on notice. All concur.

182 N.Y.S.--42

CABANA v. HOLSTEIN-FRIESIAN ASS'N OF AMERICA et al. (Supreme Court, Special Term for Trials, Erie County. June 2, 1920.)

1. Corporations 40-Increase of board of directors not legally effective until certificate filed.

An increase in the board of directors of an incorporated association does not legally become effective until the filing of the certificate of increase in the proper office, as required by Membership Corporations Law, § 14.

2. Corporations

40-Certificate of increase of directors insufficient, where

not signed by majority.

A certificate of increase in the number of directors of an incorporated association held insufficient, where not signed by a majority of the directors regularly elected.

3. Corporations 289-Right of directors and officers to hold office not subject to collateral attack.

The right of the officers and directors of a corporation to hold office cannot be collaterally attacked.

4. Animals 20%, New, vol. 20 Key-No. Series-Registry rule of association held not to warrant cancellation of record for fraud.

In a suit to enjoin the cancellation of an advanced registry of certain cattle in a register kept by a cattle breeding association, a rule relating to expunging incorrect entries for clerical error held not to warrant cancellation of the entries on the ground of fraud.

5. Animals 20%, New, vol. 20 Key-No. Series-Registry rule of association held to authorize rejection of records based on dishonest tests.

Where a cattle breeding association has provided a rule authorizing the superintendent to reject certain registries, if he has a reasonable suspicion of dishonest or improper practices in making tests, an entry of certain cattle, based upon a test as to quantity of milk and amount of butter fat, may be canceled on the ground that the tests were dishonestly made. 6. Animals 20%1⁄2, New, vol. 20 Key-No. Series-Registry subject to cancellation on notice.

A member of a stock-breeding association held entitled to notice of hearing before the association could cancel live stock entries on the ground of fraudulent tests.

7. Animals

20%, New, vol. 20 Key-No. Series-Registry not subject to cancellation on vote of objectionable officials.

Where the members of a stock-breeding association seek to cancel an entry of cattle in a certain class on the ground of fraudulent tests in an examination before the board of directors, it was improper for any member of the executive committee to vote on the question of cancellation on objection by the owner.

8. Animals 201⁄2, New, vol. 20 Key-No. Series-Registry not subject to cancellation without cross-examination of witness.

Where it was sought to cancel an entry of certain cattle in a stockbreeding association on the ground of fraudulent tests, the owner of the cattle was entitled to cross-examine all witnesses produced.

9. Animals 20%, New, vol. 20 Key-No. Series-Registry subject to cancellation without regard to common-law rules of evidence.

A stock-breeding association held not bound by the rules of the common law as to evidence produced before it on the issue of cancellation of a certificate of entry of cattle of certain class.

10. Animals 20%, New, vol. 20 Key-No. Series-Registry subject to cancellation on ex parte statements and hearsay evidence.

In proceeding by board of directors of stock-breeding association to cancel entry of certain cattle on the ground of fraudulent tests, ex parte For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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statements and hearsay evidence may properly be considered, where the presence of persons having knowledge of circumstances cannot be obtained.

Suit by Oliver Cabana, Jr., against the Holstein-Friesian Association of America and others for an injunction. Injunction granted.

Daniel J. Kenefick, Henry W. Killeen, James O. Moore, John A. Kelley, and Devoe P. Hodson, all of Buffalo, for plaintiff.

Nathan L. Miller, of Syracuse, O. U. Kellogg, of Cortland, L. L. Babcock, of Buffalo, and Č. M. Horn, of Cleveland, Ohio, for defendant association and individual defendants.

W. A. Matteson and D. R. Cobb, of Syracuse, for defendants Brockway and others.

SEARS, J. The defendant Holstein-Friesian Association of America was incorporated in 1913 under article 2 of the Membership Corporations Law of the state of New York (Consol. Laws, c. 35). The purposes of the association include the promoting and securing of the best interests of the importers, breeders, and owners of the breed of Holstein-Friesian cattle, including the ascertaining, preserving, and disseminating of useful information and facts as to their pedigrees and desirable qualities, and the distinguishing characteristics of the best specimens, and the preparing, publishing, and supplying of all necessary volumes of the Holstein-Friesian Herd Book. This Herd Book, as provided in the by-laws of the association, included a registry of all animals accepted for registry in it, and only such animals are eligible to registry as under the rules and regulations of the corporation are determined to be pure-bred "HolsteinFriesian," a term which is further defined in the by-laws. In addition to the registry in the Herd Book of pure-bred Holstein-Friesian cattle, the association authorized a system of advanced registry under a by-law reading as follows:

"A system of additional registration of animals already registered in the Herd Book of this corporation, based upon performance in the production of milk and butter fat, with minimum requirements for eligibility, and to be known as advanced registry, shall be maintained by this corporation under rules and regulations prescribed by its board of directors."

Pursuant to this by-law the directors have established an elaborate system of rules for advanced registry. These advanced registry rules, among other things, provide the minimum requirements in the production of butter fat of various classes, in order to entitle a cow or heifer to admission to advance registry, and the manner and method of conducting official tests for determining the amount of milk and butter fat produced by a cow on official tests. The advanced registry rules also include provisions for the registry of bulls based upon the admission to advanced registry of four or more daughters of any such. bull.

The supervision and keeping of this system of advanced registry is one of the important functions performed by the defendant association. All tests are under supervision of inspectors selected by agricultural colleges, and in the state of New York by the College of

Agriculture of Cornell University, and under the direction of an officer of the association known as the superintendent of advanced registry, who is a party defendant in this action.

Upon the acceptance of tests for advanced registry a certificate to that effect is issued to the owner of the animal, and the name of the animal, with the record of the accepted test, published in the advanced registry included in the official Herd Book. The issuance of such a certificate in respect to any animal gives to such animal a substantially enhanced value, and the certificate of advanced registry is transferable to a new owner of such animal, upon his acquiring title from the person to whom the certificate is originally issued.

Admission of animals to registry in the Herd Book and to advanced registry is not confined to animals belonging to members of the defendant association, but is granted generally to the owners of animals which meet the required tests. The advanced registry rules of the association contain the following provisions:

Following a clause in respect to feed and drink under the sixth subdivision of Special Rules for the Conduct of Official Tests, under rule VI, occurs the following:

"And if it shall be ascertained at any time that the spirit and intent of this rule has been violated or evaded, then and in that case any record made or influenced by any means in violation of this rule may be rejected; and if it has been accepted, it may then be expunged and canceled of record and rejected; and any person violating this rule may be expelled and excluded from and denied all privileges or rights or recognition in or by this association."

Section 11 of Special Rules for the Conduct of Official Tests under rule VI:

"But no tests of cows shall be accepted for the advanced register by the superintendent unless he shall be satisfied that such tests have been in all things fairly and honestly conducted and that the rules of the association have been complied with. If the superintendent shall be satisfied that any dishonest or improper practice in connection with the making of any test has been employed, or a reasonable suspicion thereof exists, he may reject such test, or if the same has been previously accepted and a certificate issued, he or the board of directors may cancel such acceptance and certificate, and in all such matters his decision shall be final."

Rule IX, entitled "Expunging of Incorrect Entries," reads:

"Upon evidence of such incorrectness, any incorrect entry may be expunged from the manuscript or printed volumes of this registry by the board of directors, and the certificate of registry be revoked; and in such case the board of directors shall cause to be published in the next following volume of this registry the revocation of such record and certificate thereof."

The plaintiff since 1912 has been an owner and breeder of HolsteinFriesian cattle, having a stock farm at Elma, Erie county, N. Y., where he has gathered together a large herd of pure-bred HolsteinFriesian cattle. In many instances he has applied for advanced registry for members of his herd, and after official tests many of these animals have been accepted for advanced registry, and certificates in respect thereto issued as provided in the rules of the association. Some sales have also been made by him of such advanced registered

(182 N.Y.S.)

cattle after the obtaining of the certificates. In fact, he himself and his assigns are the holders of a large number of such advanced registry certificates.

About June 1, 1915, there came to work as herdsman for the plaintiff at his Elma farm one Charles E. Cole, who remained in the employ of the plaintiff until December 19, 1918. As herdsman he milked the cows during many of the tests, and had charge of a number of the cows tested for advanced registry at the Elma farm, upon which tests many certificates now held by the plaintiff and by his assigns were issued. After leaving plaintiff's employ, Cole removed to the state of Vermont, where he engaged in business on his own account. In 1919 Cole fell under suspicion of the diary department of the Vermont agricultural institution, which at that time assisted in the tests for advanced registry on behalf of the defendant association; it being then claimed that Cole, while conducting an official test upon a' certain cow engaged in the fraudulent practice of injecting cream and warm water into the milk of said cow in the milking pail, thereby fraudulently increasing the quantity of milk and the percentage of butter fat contained therein.

This matter being reported to the board of directors of the defendant association, such board referred the matter to its executive committee, consisting of five of its directors, with instructions to make a full investigation. The committee met at Chicago on the 5th day of August, 1919, and Cole appeared before the committee and made a statement in writing, admitting the commission of the fraud in the test of the cow above mentioned, and asserting that while in the plaintiff's employ he had practiced a similar method in the tests of a number of the plaintiff's cows at the Elma farm. The executive committee then adjourned its meeting to Cleveland, and requested the plaintiff by telegraph to appear before the committee. The telegram, however, did not state definitely the purpose of the adjourned meeting, although the subject-matter of the investigation was then generally known.

The plaintiff appeared before the committee and was informed by its chairman that the committee had met for the purpose of inquiring into and ascertaining the accuracy of various records that had been made, and informed the plaintiff of the statement of Cole and of another former employé of the plaintiff at the Elma farm in respect to the tests of sundry cows of the plaintiff which had been accepted for advanced registry. The plaintiff on that occasion was accompanied by counsel and was informed that he was at liberty to bring his counsel before the committee if he desired to do so; but plaintiff stated that he did not feel the need of counsel, and expressed himself as being desirous of aiding the committee in their investigation and arriving at the truth as to the statements of Cole. He was asked if he would like to have Cole come in, and to question him himself, and he replied that he would not.

The meeting of the executive committee was further adjourned to meet at a subsequcnt date at Buffalo, N. Y., and did convene there on the 25th of August, 1919, at which time plaintiff appeared before