Hyperlawhypertext legal database McKane v. Democratic General Committee of Kings County 21 Abb. N. Cas. 89

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McKane v. Democratic General Committee of Kings County

21 Abb. N. Cas. 89 Court N. Y. Supreme Court, Second District, Special Ter m; English

Delivered by Bartlett, J.

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McKANE v. DEMOCRATIC GENERAL COMMITTEE OF KINGS COUNTY.
N. Y. Supreme Court, Second District, Special Ter m;
May, 1888.

Headnote

Amendment of name of defendant, when allowable.] Where a voluntary unincorporated association was sued in its own name, but the summons was served on its president, an amendment of the title of the action will be allowed upon terms, changing the defendant’s name to that of its president;* in order to comply with Code Civ. Pro. § 1919,f allowing such an association to sue or be sued in-, the name of its president or treasurer.
* Compare for a case of service on the wrong defendant, Smith v. Jackson, 20 Abb. N. C. 422 ; and see also 1 Abb. New Pr. 722. † Code Civ. Pro. § 1919, is as follows : "An action or special proceeding may be maintained by the president or treasurer of an unincorporated association, consisting of seven or more persons, to recover any property, or upon any cause of action, for or upon which all the associates may maintain such an action or special proceeding, by reason of their interest or ownership therein, . either jointly or in common. An action or special proceeding may be' maintained, against the president or treasurer of such an association, to-recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of
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,ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company -of persons, which has a president or treasurer, is deemed an association, within the meaning of this section.”
Bassett v. Fish, 75 N. Y. 303 , and N. Y. Monitor Milk Pan Assoc. c. Remington Agricultural Works, 89 N. Y. 22 , distinguished.
This action was brought by John Y. McKane against The Democratic General Committee of Kings County, naming it in the summons and complaint as defendant, wherein the plaintiff sought to have his right to membership of the defendant established.
The summons and complaint were served on John P. Adams, the president of the defendant, who appeared and interposed a demurrer on the ground that there was a defect of parties defendant, because the defendant committee could not be sued as such in its own name, or in its aggregate capacity, and on the further ground that the complaint did not state a cause of action. The defendant did not otherwise appear in the action. The plaintiff then moved to amend the summons so as to make the title of the .action read : “ John Y. McKane, plaintiff, versus John P. Adams, as president of the Democratic General Committee of Kings County, defendantand to amend the complaint ■by asserting therein an allegation that" the Democratic Gen•eral Committee of Kings County is an unincorporated political association, consisting of more than seven persons, and .that John P. Adams is the president thereof.
A. H. Dailey, for the plaintiff, and the motion.
James Troy, for the defendant, opposed.

An examination of the complaint shows that the cause of action, if any, set up therein, is against •those persons who comprise the Democratic General Committee of Kings County. Assuming that body to be a volun

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tary association, within the meaning of section 1919 of the •Code of Civil Procedure, it can properly be sued only by making all its members defendants, or by naming as defendant the president or treasurer. Neither course has been pursued by the plaintiff, and this motion presents the question whether his failure properly to name the defendant is a fatal defect, or whether he can correct it by amendment instead of bringing a new suit.

The Democratic General Committee, as such, has not .appeared in the action, but Mr. John P. Adams, who was iserved with the summons, has interposed a demurrer, on the ground that there is a defect of parties defendant, .because the committee cannot be sued as such in its own name or in its aggregate capacity, and on the further ground that the complaint does not state facts sufficient to -constitute a cause of action. The motion is opposed by counsel for Mr. Adams, who relies upon two cases in the court of appeals as, authorities against the power to grant it. The first of these cases is Bassett v. Eisli, 75 N. Y. 303 , wherein it was held that the complaint could not be amended by striking out the names of defendants who were :sued as school trustees, and inserting the name of a corporate board of education to which they belonged. There, .however, no attempt had been made to bring the corporation as such into court. Here, on the contrary, the plaintiff has endeavored to bring into court the voluntary association .against which he seeks to enforce some right. He has ■caused the proper officer of that association to be served •with process, and has simply omitted to name that officer in ■the title of the action as president of the association. The ■other case to which the court has been referred is the N Y. .'State Monitor Milk Pan Association v. Remington Agricultural Works, 89 N. Y. 22 ,[1] which simply holds that

* Rev’g 25 Sun, 475, on the ground that while full authority is -conferred by the Code Civ. Pro., § 723, for adding or striking out the name of a person or a party, or correcting a mistake in such name, it ■does not sanction an entire change of name of the defendant by the *92 substitution of another or entirely different defendants. The court below held that such power was within the discretion of the court under section 723.

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section 723 of the Code does not authorize the court to> strike out the name of a sole defendant in an action, and insert in lieu thereof the names of other persons as defendants. But that is not what the plaintiff seeks to have done in this action. The purpose of section 1919 of the Code is-to permit an unincorporated voluntary association to sue or-be sued in0 the name of its president or treasurer. The-association and not the officer is the real party in interest-So here, it is the Democratic General Committee and not Mr. Adams that the plaintiff really desires to sue. But the effect of the statute is to prescribe not that a voluntary association cannot be sued, but that it cannot be sued except in the name of certain officers, unless the plaintiff chooses tonaure all the' associates individually as defendants. In allowing an amendment, therefore, which shall bring the name of Mr. Adams into the title of this action, the court does not strike out the name of the real defendant, but merely permit a formal correction of the designation which has been employed so as to conform to the requirements of the statute.

Inasmuch as the right person was actually served, I think the omission of his name from the title of the action, should be regarded simply as a misnomer, and that the court has the power to grant the amendment asked. Since,, however, it will compel the defendant to change the form of its demurrer, $10 costs should be allowed on this account,, as well as $10 costs of motion. Motion granted on payment-by plaintiff of $20 costs.

Ordered accordingly.

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