Clancy v. Terhune — 1 N.Y. City Ct. Rep. 239

Majority

p. 239

New York Marine Court. Special Term

March, 1880.

CORNELIUS CLANCY, President, &c., against JOHN H. TERHUNE.

Headnote

The president or treasurer of any association consisting of seven or more members may, under the statutes of New York, sue or be sued on behalf of such association in any of the courts of this State, whether such members reside or such association transacts its business within this or any foreign State. The lex fori governs.

The plaintiff, who is president of the Hoboken Council No. 99 of the Royal Arcanum, an association of Hoboken, Hudson county, New Jersey, consisting of seven or more persons, sues the defendant in trover for the conversion of a portion of its property.

The defendant demurs to the complaint, and the question presented is whether such an action can be maintained by the president of an unincorporated society, managing its business and affairs in another

p. 240

State ; in. other words, whether our statute, permitting such a form of action, has any application to foreign associations.

John Í). Quincey, for defendant.

Arnoux, Hitch & Woodford, for plaintiff.

This being a transitory and not a local action, the mode of procedure to be followed is that allowed by the law of the forum whose jurisdiction is invoked.

The plaintiff, having brought the defendant within the jurisdiction of the court by the personal service of process, was not only permitted, but required, to conform to the laws and practice of the courts of this State, in regard to the form and manner of procedure.

The statute provides that where an association consists of more than seven members the action may be brought in the name of the president (3 R. S. 6 ed. p. 762), and this provision has been held to extend the remedy to all associations (Bridenheker v. Hoard, 32 How. Pr. 289 ; Tibbetts v. Blood, 21 Barb. 650 ; Corning v. Greene, 23 Ib. 33 ; De Witt v. Chandler, 11 Abb. Pr. 459 , 470; National Bank v. Lasher, 1 Thompson & Cook, 313; Waller v. Thomas, 42 How. Pr. 346 ; Ebbinghousen v. Worth Club, 4 Abb. New Cas. 300 ; Allen v. Clark, 65 Barb. 563 ; National Bank v. Van Derwerker, 74 N. Y. 234 ; and see 4 Duer, 362 ; 18 Abb. Pr. 191 ; 55 Barb. 437 ). The statute applies to the remedy and the lex fori governs. It is not confined to associations in this State, but applies to all associations who come into court under it. Where the statute provides a remedy, it extends to all persons who use it, unless the act by its terms expressly limitsits application. The right to attachments, orders of arrest or other remedies furnished by oui statutes has never been denied to non-resident creditors.

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These bodies are not corporations, but voluntary-associations, who are by statute permitted to sue in the name of their jiresident, and there is no reason to suppose that the legislature intended that this particular mode of procedure should be open to the citizens of this State, while the citizens of other States were to be restricted, in their procedure in the courts of this State, to a form of remedy essentially different.

It follows that the demurrer must be overruled, but with leave to the defendant to withdraw it and answer upon the merits, within six days, on payment of $10 costs.

Note.—No appeal was taken.

Cases cited

Bridenbeker v. Hoard 32 How. Pr. 289 N.Y. Sup. Ct. p. 240
Tibbetts v. Blood & Tubbs 21 Barb. 650 N.Y. Sup. Ct. 1856-05-12 p. 240
De Witt v. Chandler 11 Abb. Pr. 459 N.Y. Sup. Ct. at 470 p. 240
Allen v. Clark 65 Barb. 563 N.Y. Gen. Term 1873-03-04 p. 240
National Bank v. Van Derwerker 74 N. Y. 234 N.Y. 1878-09-17 p. 240
Robbins v. Wells 18 Abb. Pr. 191 N.Y. Super. Ct. p. 240
Fargo v. McVicker 55 Barb. 437 N.Y. Sup. Ct. 1869-11-15 p. 240