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Barasch v. Riemer

110 N.Y.S. 1053 Court N.Y. App. Term Decision date 1908-06-05 English

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p. 1053
BARASCH v. RIEMER et al.
(Supreme Court, Appellate Term.
June 5, 1908.)

Headnote

Associations—Actions Aqainst Members—Burden of Proof.
Where an action is brought against the individual members of an unincorporated association after a judgment in an action against the president thereof and the return of an execution unsatisfied, plaintiff must allege and prove, not only the original judgment and the return of execution unsatisfied, but facts sufficient to make out the original cause of action against the association; and, where the liability of the association is founded on a written instrument signed by an individual and bearing the seal of the association, plaintiff must show that such individual was authorized to sign the instrument and bind the association, on the authority of such person being questioned.
Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by Isaac Barasch against Joseph Riemer and others. From a judgment of the Municipal Court in favor of plaintiff, defendants appeal.
Reversed, and new trial ordered.
Argued before GILDERSLEEVE, P. J., and DAYTON and GERARD, JJ.
S. C. Sugarman, for appellants.
Louis Levene, for respondent.

Plaintiff brought an action upon a judgment obtained against an unincorporated association in which defendants were members. The judgment was obtained in an action brought against the president of the association. Subsequently, after the return of execution unsatisfied, this present action was brought against four of the members of the said society, none of whom were parties to the previous action. The action was brought on a writing, signed by the president of the society, as follows:

“New York, June 5, 1905.
“Erste Foltichener Roum. Am. Kupp. Pay to the order of Isaac Barasch one hundred and fifteen dollars ($115) out of our treasury.
“[Signed] Abraham Donner.”

The instrument bore the seal of the society. The plaintiff did not prove that Donner was authorized to sign this instrument and bind the society. The plaintiff was sufficiently apprised at the trial that the defendant raised this question. Where an action is brought against the individual members of an unincorporated association, plaintiff must allege and prove, besides the original judgmént and the issuance and the return of execution unsatisfied, such facts as are sufficient to make out the original cause of action against the association. Allen v. Clark, 65 Barb. 563 ; Witherhead v. Allen, * 42 N. Y. 562 ; Peckner v. Webb, 35 Misc. Rep. 291 , 71 N. Y. Supp. 768 .

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

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