Neary v. Gould

Headnote

Neary v. Gould, 181 App. Div. 936 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered. January 25, 1918, unanimously affirming a judgment in favor of plaintiff entered upon the report of a referee. The action was originally instituted against the defendants Gould, Ramsey, Fitzgerald and about sixty other defendants, all of whom were members of the Pittsburgh and Toledo Syndicate, of which Gould, Ramsey and Fitzgerald were managers, to enforce an indemnity agreement executed by the latter as the managers of the syndicate to save harmless the American Trust Company of Pittsburgh against liability incurred or to be incurred as a surety on condemnation bonds executed on their request by the trust company. The respondent has succeeded to the rights of the trust company, by agreement. At the close of the plaintiff’s case the referee dismissed the complaint against all of the parties other than Gould, Ramsey and .Fitzgerald, holding that the managers of the syndicate .had no power to bind its members by contract. He subsequently dismissed the complaint against the defendant Guy Richards, executor of Louis Fitzgerald, deceased, although one of the syndicate managers, holding that the indemnity agreement constituted the joint undertaking of the syndicate managers and that there was no cause of action, therefore, against the defendant Richards, as executor, in the absence of proof that the surviving parties, Gould and Ramsey, who were held to be personally liable, were insolvent or unable to pay.