Rourke v. Elk Drug Co. — 75 A.D. 145

Majority

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John H. Rourke and Thomas Rourke, Appellants, v. The Elk Drug Company and Others, Respondents, Impleaded with Others. John H. Rourke and Thomas Rourke, Appellants, v. The Elk Drug Company and Others, Impleaded with Samuel L. Smith as President of the Binghamton Retail Druggists’ Association, Respondent.

Headnote

Parties to an action for tort—action for tori against the president or treasurer of an association—complaint alleging a conspiracy to ruin a business and, also charging libel and slander — special injury from a combination to prevent competition iri trade.

A complaint in an action in tort is not demurrable because some of the joint tort feasors have not been made parties defendant, nor does the fact that persons have improperly been made defendants render it demurrable as to a person who has been properly made a defendant.

An action based upon a tort committed by all the members of an unincorporated association, acting through the association, may, under the provisions of section 1919 of the Code of Civil Procedure, be maintained against the president or treasurer of the association.

Where the gravamen of the complaint in an action is that the defendants unlawfully conspired to ruin the plaintiffs’ business, the fact that it alleges that, in the accomplishment of their purpose, the defendants circulated libels and uttered slanders concerning the plaintiffs, does not render the complaint demurrable as stating more than one cause of action.

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A person suffering special injury from an act done in furtherance of a combination entered into for the purpose of preventing competition in trade in. commodities in common use, or for kindred purposes, which combinations are declared to be illegal by chapter 690 of the Laws of 1899, has a right of action to recover the damages sustained by him.

Appeal by the plaintiffs, John H. Roiirke and another, from, interlocutory judgments of the'Supreme Court, one in favor of the defendants, The Elk Drug Company and others, and one.in.favor of the defendant;, Samuel L. Smith, as President of the Binghamton Retail Druggists’ Association, entered in the office of the clerk of the county of Broome on the 18th day of February, 1902, upon decisions of the court, rendered after trials at the Broome Special Term, sustaining demurrers to the complaint.

Two demurrers to the complaint were taken, one by defendant Samuel L. Smith, as president of the Binghamton Retail Druggists’ Association, and one by certain other defendants. Both demurrers are upon the- same grounds. The demurrers were sustained at Special Term, and an appeal from the interlocutory judgments entered thereon is taken to this court.

The grounds of demurrer are:

First. Defect of parties defendant.

Second. That causes of action have been improperly united.

Thwd. That the complaint does not state facts sufficient -to constitute a cause of action.

Wilber <& Yetter and A. D. Wales, for the appellants.

Hinman, Howard <& Kattell, for the respondents.

The specification of the demurrers on the first ground — defect of parties defendant —is the failure to join several others as defendants whom the complaint charges to be co-conspirators. The action is in tort, and each tort feasor is liable severally if at all. The demurrers are not, therefore, good on the ground first stated."

The complaint does not offend by uniting improperly several causes of action. There is but one cause of action alleged. The plaintiffs’ grievances seem to be in the injury to their business as druggists, caused.by these defendants doing various acts in pursuit of a single purpose, to wit, the ruin of the business of the plain

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tiffs. The circulating of libelous matter is charged to have been a step in the scheme; so, also, the slanders uttered. The charge is a conspiracy of all the defendants to accomplish the unlawful purpose stated, and enough is declared in the complaint to make each of 'the defendants responsible for the libelous matter published by either, or the slanderous words uttered by either of the co-conspirators when so published and uttered to accomplish the common purpose. The second ground stated in the demurrers is, therefore, not tenable.

The complaint, I think, states a cause of action against the Binghamton Retail Druggists’ Association, an unincorporated company, and a cause of action against each of the other defendants named. The association has members not named as defendants. By the allegations of the complaint all the members of that association are severally liable, and a judgment taken against the president is good against the property of the association only. The president cannot be held on a body execution though the action be in tort. An action in tort, however, may, I think, be maintained against the association as such where all the members are charged with committing the wrong through the association. The portion of section 1919 of the Code of Civil Procedure, which authorizes such an action, reads as follows : “ An action or special proceeding may be maintained against the president or treasurer of such an association * * * 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 liability therefor either jointly or severally.” The complaint seems to allege all the necessary facts to entitle plaintiffs to maintain an action under this provision of the Code against the president of the association if it alleges any cause of action at all. The fact that some of the members of the association have been also made defendants does not diminish the force of the alleged facts regarded as creating a cause of action against the president. If there are too many defendants because of any Code provision regulating practice that cannot be considered in a demurrer on the ground of failure to state a cause of action when the cause of action alleged is in tort.

The complaint alleges a clear cause of action against each of the defendants. It alleges a conspiracy into which all entered to accom

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plisli an unlawful purpose by unlawful means. The defendants as co-conspirators are charged with making threats, with intimidation, with libels upon plaintiffs’ business reputation calculated to destroy their business, with the use of' slanderous language affecting their business character and directly affecting their business; with interfering with their advertising and preventing them in reaching customers in the ordinary way, and many other things are charged which clearly show a cause of action in plaintiffs at common law. Then, again, the complaint charges the defendants with forming a combination among themselves and with others for the unlawful purpose of preventing the free pursuit of a lawful business, of increasing the price, of commodities in common use, of preventing competition in trade in certain articles, all of which things are expressly prohibited by statute and made a misdemeanor. (Laws of 1899, chap. 690.) The statute referred to reads as follows:

“ Section 1. Every contract, agreement, arrangement or combination whereby a monopoly in the manufacture, production or sale in this State of any article or commodity of common use is or may be created, established or maintained, or whereby competition in" this State in the supply or price of any" such article or commodity is or may be restrained or prevented, or whereby for the purpose of creating, establishing or maintaining a monopoly within this State of the manufacture, production or sale of any such article or commodity, the free pursuit in this State of any lawful business, trade or occupation is or may be restricted or prevented, is hereby declared to be against public policy, illegal and void.

“ § 2. Evei’y person or corporation or any officer or agent thereof,, who shall make or attempt to make or enter into any such contract, agreement, arrangement or combination, or who within this State shall do any act pursuant thereto or in, toward or for the consummation thereof, wherever the same may have been made, is guilty of a misdemeanor.”

The combination■ charged being prohibited and made criminal, every act of the defendants in furtherance of the object of the combination was unlawful, and any person suffering special injury on account of any of such acts has a right of action. It makes no difference whether such acts if done by an individual not in the combination • might have been lawful, and a person suffering there

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from, would be without remedy. The same acts done by agreement or combination of several are made unlawful, and for that reason a right of action follows. The case is different with associations known as labor unions. The ostensible object of such associations is a lawful one and has been so declared by the courts. (National Protective Association v. Cumming, 170 N. Y. 315 .) What one member of such an association may lawfully do the association may lawfully do. But the same theory does not hold with an association whose aim is to commit a statutory crime. Here nothing may be done in furtherance of the purpose for which it has combined. Every act is unlawful, and for that reason a right of action accrues to each person who suffers an injury.

The interlocutory judgments are each reversed, with costs, and the demurrers are each overruled, with costs, with usual leave to answer over on payment of costs.

.All concurred. 1

Interlocutory judgments reversed, with costs, and demurrers overruled, with costs, with usual leave to answer over on payment of costs.

Cases cited

National Protective Ass'n of Steam Fitters & Helpers v. Cumming 170 N. Y. 315 N.Y. 1902-04-01 p. 149