Sander v. Edling

| New York Court of Common Pleas | Jun 1, 1885

Charles P. Daly, Chief Justice.—The

conclusion of the referee was correct that, since the passage of the acts of 1849 (L. 1849 c. 258) and 1851 (L. 1851 c. 448), any unincorporated association having a president or treasurer may be sued by a member of the association in an action against either of these officers. Such an association being in the nature of a copartnership, an action at law, before the passage of these statutes, had to be brought against all the members collectively, as such a body had no legal personality distinct from that of its members; and no single member could sue the body collectively, as no one could be plaintiff and defendant in the same action.

The statutes referred to have removed this difficulty by-allowing the action to be brought against the president or the treasurer ; and it was consequently held in Westcott v. Fargo (61 N.Y. 542" court="NY" date_filed="1875-01-05" href="https://app.midpage.ai/document/westcott-v--fargo-3591169?utm_source=webapp" opinion_id="3591169">61 N. Y. 542) that a stockholder of a joint stock corporation could sue the company in the form prescribed by the act of 1849. That statute allowed an action against a joint stock company or association consisting of more than seven shareholders to be brought against the president or treasurer of the company, and the act of 1851 extended the provisions of the former act to any company or association of not less than seven members who were the owners of or had an interest in any property, right of action or" demand, jointly or in common, or who may be liable to any action on account of such ownership or interest; and if, as has been held, a stockholder of a joint stock company can sue the company in an action against the president or treasurer, under the act of 1849, I do not see why a member of any company or association under the act of 1851 cannot sue the association by bringing the action against one of these officers; for an action in that form is allowed by the act of 1851 against the company or association, if it is an owner or has any interest in any property, right of action or demand, the remedy being manifestly limited to what it owns as a body collectively.

None of the objections to the evidence were well taken. The witness had the right to use the bill of particulars to refresh his memory as to particular items, each of which, he testified, he recollected apart from the paper, and the allowing of the question objected to at folio 300 was entirely in the discretion of the referee.

In the finding of fact, the referee allowed the plaintiff $835.35 for money laid out and expended for the association.

At a meeting of the stockholders a resolution was passed that the plaintiff should have the right to pay petty expenses out of the money taken in at the park in amounts not exceeding $25, to relieve him from the trouble of constantly calling upon the treasurer for such small sums, but that all bills over $25 were to be sent to and paid by the treasurer, and the $835.35 included payments by the plaintiff upon several occasions of amounts greater than $25.

The president testified that this meeting was held when the association took possession of the park, on the 1st or the 2nd day of May, but the plaintiff swore that it was held on the 11th of June, and fixed the day by the date of a bill which he paid upon that day immediately after the meeting. He testified that before the passage of the resolution on tliat day, no limit had been placed upon his expenditure by the directors; that he was employed as the manager of the park about a week before the opening of it, on the 1st of May; and that the payments he made were for work that he was ordered by the officers to have done to get the park ready, or payments made for supplies or other matters essential to the carrying on of the enterprise, such as $75 for a license. „

The referee evidently believed the plaintiff as to the time, the 11th of June, when this resolution was passed, limiting his expenditures to sums not exceeding $25 in any one payment, or within any one week; and we cannot say that the referee erred, for the testimony of the defendant’s . witnesses do not agree as to the time when this resolution was passed. One agrees with the president, two leave it uncertain, and one agrees with the plaintiff. Kruger, the vice-president, remembered that it was passed, but was not sure at what meeting. Rothermell testified that it was at the second meeting after the park was opened, which was held, he said, about the middle of June, thus corroborating the plaintiff as to. the time of the meeting.

All that Grillig could testify to was that it was passed at a meeting immediately after they took possession of the park, but could not remember when it was held. He thought that Reacted as secretary of the meeting, but was' not certain, and finally said that he was not positive whether the meeting was held in May or June.

Strassburger, the treasurer, could not tell at what place nor where it was held, except that he believed that it was just after the association started, and was sure that it was before the park was opened, in this respect contradicting the rest of the defendant’s witnesses. He also said that the sum limited was $20 and not $25.

This statement is sufficient to show that the time when this resolution was passed was a question for the referee ; and the materiality of the time of its passage is this—that if it was passed on the 11th of June, as the plaintiff testified, then none of the payments after that date included in the $835.35 were in sums as great as $25, except one of a bill for advertising to one Siebert of $41, which the plaintiff paid, as he testified, immediately after the resolution was passed. He testified that he called the attention of the president and of ICruger, the vice-president, the latter of whom was a member of the house committee—the “ rulers of the park,” as the president called them ; that Mr. Siebert had been waiting throughout the meeting to get his bill paid, and that they told him to pay it; that he replied, “ You have just passed a resolution for me not to pay; and I don’t want to do it.” Upon which they both said, “ Go on and pay him,” and the treasurer being present, the plaintiff then filled up a check and passed it to Siebert across the table; all of which, being done in the presence of the treasurer, may be regarded as done with his acquiescence ; that it was in effect equivalent to a payment ordered by him, and as such within the intent of the resolution. All the other payments, as appeared by the exhibits and the plaintiff’s testimony, which were made after the 11th of June, were made in sums less than $25 so that what the plaintiff recovered was his monthly salary, $100, and $835.45 expenditures, made by him by direction of the officers, before the 11th'of June, when he"was under no restriction, and expenditures made by and paid for by him in sums less than $25 after the 11th of June.

The judgment should be affirmed.

Allen, J., concurred.

Judgment affirmed.