Lovitt v. Illinois Surety Co.

150 N.Y.S. 609 | N.Y. Sup. Ct. | 1914

Guy, J.

The action was brought upon a bond given by defendant to the “ White Bats of America,” a membership corporation of which plaintiff was a member, whereby defendant guaranteed the performance of all contracts of employment made with mémbers of said “ White Bats ” corporation, and, in addition, guaranteed the faithful performance by any theatre owner, manager or employer of all contracts made through Felix Beich Agency Inc., J. Herbert Tebbets and Felix Beich acting as agent or agents, with any member or members in good standing of the “ White Bats of America.”

The complaint alleges the giving of the bond to said “ White Bats ” corporation; that plaintiff was and is still a member in good standing of said ‘ ‘ White Bats ’ ’ corporation, and as such is entitled to all the benefits of membership and to share in all benefits to be derived from contracts or agreements made by said “ White Bats ” corporation for and on behalf or for the benefit of its members; that subsequently to the giving of the bond plaintiff herein entered into a contract of employment with the Felix Beich Agency, Inc., and has duly performed all the conditions of said agreement, and that the said Felix Beich Agency, Inc., has refused and neglected to perform said contract to plaintiff’s damage; that plaintiff began an action against the said Felix Reich Agency, Inc., on account of the breach of the aforesaid contract of employment and recovered a judgment against the said Felix Reich Agency, Inc:, in the sum of $760.78, that due notice of the aforesaid action and of the judgment in favor of plaintiff was given to the defendant-respondent; that execution on the aforesaid judgment was duly issued and returned wholly unsatisfied and still remains wholly due and unpaid; that plaintiff is still the owner and holder thereof, and that by virtue of the foregoing facts defendant became liable to plaintiff upon the aforesaid bond in the sum of $760.78, with interest from the 25th day of January, 1913, the date of the entry of said judgment, and that defendant has failed and neglected to pay to plaintiff any part of said sum to plaintiff’s damage, etc.

On the trial, on motion of defendant’s attorney, the complaint was dismissed on the pleadings, and the plaintiff appeals from the judgment entered thereon.

It is contended by the defendant-respondent that the relationship between the various parties herein is not such as to bring the case within the doctrine that a person for whose benefit a contract is made can sue and recover on said contract, and that the contract alleged herein, made by the defendant, the Illinois Surety Company, was not made for the benefit of plaintiff. We do not think that this contention is sound. On the contrary, the amended complaint alleges specifically that plaintiff as a member of the “ White Rats ” corporation was entitled equally with all other members to share in all benefits to be derived from contracts or agreements made by said 1 ‘ White Rats of America ’ ’ for and on behalf or for the benefit of its members; and further that the bond in suit was given for the express purpose of guaranteeing the faithful performance of contracts of employment made with any member or members in good standing of the “ White Bats of America.”

A membership corporation is not a stranger to its own members, but is sufficiently in privity with them for them to enforce its contracts with third persons for their express benefit. Smyth v. City of New York, 203 N. Y. 106, 112, 116; Pond v. New Rochelle Water Co., 183 id. 330, 333-338; Buchanan v. Tilden, 158 id. 109, 118-23; Little v. Banks, 85 id. 258, 263.

The judgment dismissing the complaint, must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Bijur and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.