United Press v. A. S. Abell Co.

| N.Y. App. Div. | Jul 1, 1903

Patterson, J.:

The plaintiff procured an attachment against the property of the A. S. Abell Company and of the Herald Publishing Company, two foreign corporations, in an action in which those defendants were enjoined with one Felix Agnus, manager and trustee of the Baltimore America/n newspaper. The warrant of attachment was granted after judgment in the action had been entered against Felix Agnus individually. The defendants, the Abell Company and the Herald Company, moved to set aside and vacate the attachment, on the ground that the contract involved in the action was a joint, and not a several, contract between Agnus and the other defendants, and that the plaintiff having recovered his judgment against Agnus individually, the other defendants were discharged from liability, the cause of action being merged in the judgment against the defendant Agnus. The motion to vacate the attachment was granted, and from the order entered thereupon this appeal is taken.

There can be no doubt, upon the record before us, that the contract was a joint one. The defendants in this action agreed conjointly with the New York Associated Press, to whose rights the plaintiff has succeeded, to pay for certain services to be rendered by the Associated Press and the plaintiff. The defendants contracted in form as the Baltimore News Association,, and all the obligations assumed by the defendants under that contract were joint in their nature. Such an unincorporated association is a. partnership, the association having been formed for pecuniary profit. It was to receive news from the Associated Press with the right not only of its members to use the same, but the association as an association had the right to contract to supply the news so furnished by the Associated Press to other newspapers than those, the proprietors of which were members of the association. That appears by the 5th paragraph of the agreement upon which the plaintiff sued, and hence it must be said to have been engaged in a commercial enterprise, and, as remarked in MoCabe v. Goodfellow (133 N. Y. 95), there is a distinction as to the relationship of the members of an association formed for the purposes of pecuniary profit and an association formed for other objects. In that case the court says: “In Natl. Bank v. Van Derwerker (74 N.Y. 234" court="NY" date_filed="1878-09-17" href="https://app.midpage.ai/document/national-bank-v--van-derwerker-3589280?utm_source=webapp" opinion_id="3589280">74 N. Y. 234) the association belonged to the former class and was engaged in a commercial enterprise, and it was shown that the officer contracting the debt had authority to bind its members. Such associations have, in fact, all the powers and incidents of a partnership, and their transactions aré governed by the law relating to such adventures; but associations formed for moral, benevolent, social or political purposes rest upon a different basis,”

The contract sued on here, being in the nature of a partnership obligation, it is a joint obligation made in its name and having attached to it all the incidents of a joint obligation. The plaintiff having elected to take á judgment against one of the joint debtors, the cause-of action against all is merged in the judgment. (Heckemann v. Young, 134 N. Y. 172.)

The motion to vacate the attachment in this particular action was properly granted, and the order must be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien, Hatch and Laughlin, JJ., concurred..

Order affirmed, with ten dollars costs and disbursements..