66 A.D.2d 701 | N.Y. App. Div. | 1978
Order, Supreme Court, New York County, entered March 9, 1978, to the extent appealed from, denying defendants-appellants’ cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, with $75 costs and disbursements of this appeal to appellants, said cross motion granted, and the complaint dismissed and the action severed as against appellants. This is an action to recover the balance of moneys due for advertising services rendered on behalf of the mayoral campaign of Albert Blumenthal. The appellants were associated in varying capacities with committees formed in connection with that campaign. The appeal is from a denial of their motion for summary judgment, Special Term having concluded that factual issues were presented. As developed in the sole affidavit submitted on plaintiff’s behalf, plaintiff was employed to place television and radio advertising for the campaign by a man named Wunderlicht, described as the assistant campaign co-ordinator, who allegedly was acting on behalf of the candidate and his committee. The affidavit further states in general terms that the defendants "agreed to pay the plaintiff in advance for each broadcast.” From the context, it appears that this statement is based upon something said by Wunderlicht. It is further developed that to the extent plaintiff was paid for the services rendered, the payments were by way of checks drawn upon bank accounts maintained by one or another of the campaign committees. In their affidavits, the appellants describe their varying relationships to the campaign. Kotler stated that she was not an officer of any of the committees, but was listed in a bank resolution as "Assistant Treasurer” to act as an "Authorized Signature,” and denied that she had any relationship whatever to the advertising. Zimmerman acknowledged that he was treasurer of the various committees but was in no way involved with plaintiff regarding any aspect of the advertising service. Del Giudice was the campaign manager of the campaign. What is decisive here is that each of the appellants explicitly denied any agreement to pay any campaign obligations individually or to assume any personal liability whatever with regard to them, and these statements were in no way contradicted by the plaintiff. The controlling principles were set forth in McCabe v Goodfellow (133 NY 89). In that case, a lawyer sued for the value of legal services rendered the treasurer of a "Law and Order League” which had been formed to assist town and village officers in enforcing the excise and corporate laws. Preliminarily, the court noted that the action could not be maintained against the officer unless the debt sought to be recovered was one upon which he could maintain an action against all of the members of the association by reason of their liability, either jointly or severally. A distinction was then noted between associations formed for the purpose of pecuniary profit and those formed for other objects. Noting the transitory character of the organization, the court went on to conclude that the members of the association "had no reason to suppose that the committee so employed the plaintiff upon their individual
