Ranken v. Probey

120 N.Y.S. 413 | N.Y. App. Div. | 1909

Kellogg, J.:

The first amended complaint in this' action was dismissed at the trial upon the ground that it did not state facts sufficient to constitute a cause of action. The judgment on such dismissal was reversed by this court in 131 Appellate Division, 328, the court holding that the amended complaint foreshadowed that the association was organized for pecuniary protit, and if such facts were proved upon the trial the action could be maintained against the president of the association. Upon this trial the plaintiff failed to prove that the association was formed for the pecuniary profit of its members, and did not show that the members were jointly and severally liable for the indebtedness, as required by McCabe v. Goodfellow (133 N. Y. 89) and the former decision in this case. But a verdict was directed for the plaintiff upon the theory that an admission in the original answer was proof sufficient to establish those facts and to bring the case within the provisions of section 1919 of the Code, of Civil Procedure.

To understand the admission in the answer we must read the complaint which it answered. It alleged that the National Carriage Dealers’ Protective Association was an unincorporated association of more than seven members, and that the defendant is its president ; that the plaintiff had performed services as secretary for the association at $50 a month, and that the defendant is justly indebted to him for his salary and services as such secretary in the sum of $1-00, Avhich he had demanded and which had not been paid, and tliat while acting as secretary he had incurred certain expenses incident to the conduct of his office, for stamps, stationery, desk, stenographer and other office sundries to the amount of $100, Avhich sum is justly due and owing plaintiff by defendant, and demanded judgment for $500 and interest. The answer admitted that the association was unincorporated and consisted of more than seven members; that the defendant was its president; that the plaintiff Avas secretary at $50 per-month, and that the association is indebted' to him in the sum of $100 for eight months’ salary as such secretary, and- denies knowledge or information sufficient to form a belie! as to the other allegations of the complaint-.

An admission of a fact in an original pleading does not lose its effect as an admission of fact because the pleading has been superseded as such by an amended pleading. It stands simply as an admission made by the party. But that does not help the plaintiff. The original complaint does not allege that the association was formed for pecuniary profit, and does not allege any liability existing against the members individually, and, therefore, giving it all the force which can be claimed it does hot authorize the judgment. The original answer; however, was interposed by the defendant’s attorney. The defendant had no knowledge of its contents, and the attorney upon the stand offered to show the facts and circumstances under 'which the admission was made, and that he made it merely as a matter of form without any information that the admission was true, but simply'to raise a legal question which he felt must dispose of the case. The fact that the admission was made without the knowledge of the defendant weakens its force, and if the attorney who made it had bebn permitted to explain the circumstances and reasons therefor it might have destroyed its force as evidence to prove an admission by the defendant. The fact that the answer interposed in the case contains an admission is sufficient jprima facie to charge the defendant with it; but if it appears' that the defendant had no knowledge of the admission, that it was made without his authority and without any information which justified it, it is substantially deprived of value. The rejection of this evidence was prejudicial error.

For these- reasons the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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