3 Daly 116 | New York Court of Common Pleas | 1869
By the Court
But one point is taken upon this appeal, and that is decisive against the plaintiffs’ right to the judgment. The plaintiffs and the defendants, with others,, who are -named but not joined as parties, are members of a, voluntary unincorporated association, known by the designation of the Mutual Pleasure Club, organized for the recreation of its members in boating and yachting. The action was brought to recover $500 advanced by the club to the defendant Rauhr,, one of its members, upon a contract which he made to build a boat for the club, which boat upon trial proved defective;,
Twenty members of the club executed to the plaintiffs, four members of the club, an assignment in writing of all their interest in the contract which Rauhr had broken, and the plaintiffs brought this action to recover back the $500, making the other members, who had refused to join in the assignment or to unite as plaintiffs, parties defendant with Rauhr, under sections 118 and 119 of the Code, which are applicable to the Marine Court.
“ It is,” says Chitty, (1 Chitty on Pleading, 45, 6th Am. ed.) “ an answer to an action that a party is legally interested in each side of the question ”—a proposition fully sustained by the authorities (Holmes v. Higgins, 1 Barn. & Cres. 74; Moffat v. Van Mulligen, 2 Chitty R. 539; Bosanguet v. Wray, 6 Taunt. 597; Trustees of the Methodist Episcopal Church v. Stewart, 27 Barb. 553; Cary v. Williams, 1 Duer, 667). This is the rule in actions at law; and the rule in equity is, that persons having adverse or conflicting interests in the subject-matter of the litigation, cannot be j oined as plaintiffs (Grant v. Van Schoonhoven, 9 Paige, 255; Davies v. Quarterman, 5 Loud. Jurist, 93; Hunter on Suits in Equity, pp. 14, 15, 16).
This rule is ordinarily applied in the case of partners, neither of whom can maintain an action at law against the other, because each has a joint interest in the property and effects of the firm, and their respective rights can be adjusted and settled only by a suit in equity. But I doubt if there is any reason for applying this rule to a voluntary society or club, the property of which is a mere incident to, and not the main purpose of the association; the members having no severable proprietary interest in it, or a right to any proportionate part of it, if they resign, forfeit their membership or are expelled. They have merely the enjoyment and use of it while members, and, if they are then members, a right to a proportionate share of its assets when it is dissolved (White v. Brownell, 2 Daly, 329; s. c. 4 Abb. Pr. Rep. N. S. 190,191; in re The St. James' Club, 13 Eng. Law & Eq. Rep. 592; Caldicott v. Griffiths, 8 Excq.
It is suggested that no action could be maintained in any tribunal by the rest of the members against Rauhr to recover from him this $500, for the reason that he has exactly the same equal interest as the rest in the claim, and that if he were compelled to pay the $500, he would have to bring an action against all the rest to recover his proportionate part of it. ° The answer is, as before stated, that neither he nor any other member is entitled to any proportionate part of the funds or property of the body, the whole of which belongs to the organization while it continues to exist; and when it ceases, by voluntary dissolution or otherwise, those who are then members take, and not until then, their proportionate share of its assets, if there be any. If the action had been brought as it should have been in a court having equitable jurisdiction, there would have been no difficulty, in my judgment, in maintaining it • equitable actions being adapted to meet those cases where there should be a remedy, and where none can be obtained by an action at law, but no action. could be maintained in the Marine Court, as that court has not the equitable powers essential to enable it to give relief.
The judgment should be reversed.
Judgment reversed.