Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
This case involves the novel question as to whether common-law tort liability may be predicated on the defendants' fraudulent conduct of an election for officers of a labor union resulting in the plaintiff's deprivation of the title and emoluments of an office for which he was a candidate.
It is observed at the outset that defendants sought leave several days prior to the argument to file an answering brief substantially out of time. There was no indication whatever of justifiable cause for the failure to request such leave prior to the expiration of the time limited by the rules. Permission was consequently denied notwithstanding the unwarranted
burden thus imposed by the defendants on the court of resolving this appeal ex parte.
The first count of the complaint, epitomized, recites that plaintiff is a member in good standing of Hotel and Restaurant Employees and Bartenders National Union, Local No. 508, A.F. of L., and had served in the office of "Secretary and Treasurer" of the union from August 7, 1943 until December 1, 1950; that the compensation for the office is $125 per week; that a regular biennial election of officers of the union, at which plaintiff was a candidate for reelection and the defendant Richards his opponent, was held November 17, 1950; that at the election a majority of the members voting cast their votes for him for the said office but that the defendants, including Gould, candidate for president, Reilly, judge of election, and Sidner and Baysmore, tellers, "unlawfully, fraudulently and tortuously" (sic), and with the intent of depriving plaintiff of the emoluments of the office of Secretary and Treasurer, altered or erased the markings signifying a vote for plaintiff on 123 ballots in such manner as to indicate a vote for Richards instead, resulting in the declaration of election of Richards rather than plaintiff; and that plaintiff would have been elected were it not for the said transfer of votes. The second count recites the same facts, differing only in positing the miscarriage of the election on the counting of the altered ballots for Richards even without regard to the effect on plaintiff's total vote. The third count charges that the acts complained of resulted from a conspiracy of the defendants to deprive plaintiff of his office and his salary and emoluments. Damages are sought in the sum of $13,000, representing loss of salary for two years, and for $10,000 as punitive damages.
A previous action had been brought by the plaintiff and a defeated candidate for another office to set aside the declaration of the results of the election, enjoin those declared elected from exercising the respective offices, adjudge plaintiffs duly elected, and for incidental damages. This was dismissed before conclusion of the hearing in the Chancery Division
on the ground that plaintiffs had failed to exhaust their remedies within the framework of the constitution of the union.
In the present cause, the answer filed by the defendants pleads a denial of the charges and separate defenses of failure to exhaust remedies within the union, and res adjudicata , based upon the disposition of the first action. Thereafter defendants moved for judgment on the pleadings, assigning the additional defenses of statute of limitations and failure to state a cause of action. On the return of the motion the court entered judgment for defendants for failure of the complaint to state a cause of action. In an oral opinion the court concluded that it had no jurisdiction to entertain an action to be tried by jury involving the factual investigation of the conduct of the election and a determination of its legal results.
We consider first the defenses of election of remedies and res adjudicata. Their interposition misconceives the fundamental difference in the relief and judgment sued for in the respective actions. In the first action what was sought was a judgment determining that plaintiffs were elected and installing them as elected officers of the union notwithstanding the declared result of the election. In that regard the Chancery Division held that it was incumbent upon the plaintiffs to have recourse to the remedy of review within the union. In the present action plaintiff does not seek restoration of the disputed office. He asks money damages against the defendants as individuals, alleging that because of their wrongful acts he has been deprived of the benefits of a union office to which he would otherwise have been reelected. There is no union legislation looking to such relief and consequently the plaintiff had no recourse before any union tribunal for what he seeks here. Beedie v. International Brotherhood of Electrical Workers , 25 N.J. Super. 269, 273, 274 (App. Div. 1953), certification denied 13 N.J. 392 (1953). The mere fact that both causes of action arise out of the same factual situation does not make a prior
judgment conclusive as to the different issues and subject matter involved in the later action. Epstein v. National Casualty Co. , 1 N.J. 409 (1949). Moreover, when a prior action is dismissed on grounds not going to the merits of the grievance asserted it will not constitute res ...