Opinion
July Term, 1898.
Albert G. McDonald, for the appellants.
Paul Eugene Jones [ Paul E. De Fere with him on the brief], for the respondents.
This action is brought against the defendants individually and also against the defendant Andrew D. Baird, as president of an unincorporated association of more than seven members, to recover damages for a conspiracy and combination to prevent the plaintiffs from carrying on their trade of buying, cutting and selling free stone in the city of Brooklyn. The individual defendants demur on the ground that the complaint does not state facts sufficient to constitute a cause of action against them, and that several causes of action are improperly united.
The principal objection urged to the maintenance of this action against the individual defendants is, that under sections 1919 to 1924 of the Code of Civil Procedure, where an action has been brought against the president or treasurer of an unincorporated association, another action against the members of the association cannot be instituted until after final judgment in the action against the president or treasurer of the association, and the return of an execution thereon unsatisfied in whole or part. As to the defendants, other than Baird, it does not appear in the complaint that they are members of the association. This disposes of the demurrer of those defendants. As to Baird, however, the question is presented. The intent and purpose of these sections of the Code is plain. It is to relieve such an association or persons having claims against it from the necessity of making all members of the association parties to any action that may be brought by or against it. But equally plainly this only applies to the liability of members of the association as such. A joint stock company, such as an express company, might, with one of its individual members, make a joint promissory note; a member might draw a draft on the association and the draft be accepted by it; a member might become surety for the performance by the association of some contract. In all these cases, upon default in the obligation of the association, both it and the individual member could be sued in the same action, for the liability of the individual would be personal and not as a member of the association. Certainly it was not intended to give a member of such an association any greater immunity from suit on his obligations than he would have were the association a corporation and he a stockholder thereof. The same principle is applicable to the torts of the association. If a person were negligently injured by the driver of an express wagon, in the discharge of his duty, the driver and the joint stock company could be sued in the same action as joint tort feasors ( Phelps v. Wait, 30 N.Y. 78); and the fact that the driver was a member of the express company would not change the rule. In the complaint before us the individual defendants are charged with personal wrongdoing. If on the trial this is established, then the judgment will go against them as well as against the association. If it is not established, then the complaint should be dismissed as to them, even though the association be held, and the individual defendants as members of that association thereafter become liable for the obligation of the association.
The objection that the Statute of Limitations has run against the plaintiffs' claim can be taken advantage of only by answer. (Code Civ. Proc. § 413.)
The interlocutory judgment appealed from should be affirmed, with costs, with leave to the defendants to answer on payment of costs of the demurrer and of this appeal.
All concurred.
Interlocutory judgment affirmed, with costs, with leave to the defendants to withdraw demurrer and serve answer within twenty days on payment of costs of demurrer and of this appeal.