Gobbi v. Associazone Fraterna Itallianna — 65 N.Y.S. 672

Majority

p. 672

GOBBI v. ASSOCIAZONE FRATERNA ITALLIANNA et al.

(City Court of New York, General Term.

July 11, 1900.)

Headnote

Arrest—Action on Bond—Parties.

Where an association, on securing plaintiff’s arrest, executed a bond for damages, but failed to sign the same, in an action on the bond the association is not a proper party defendant.

Appeal from trial term.

Action by Giovanni Battista Gobbi against the Agsociazone Fraterna Itallianna and others on a written undertaking executed to procure an arrest in a suit by the association. The undertaking was not signed by the association. Judgment for plaintiff, and defendants appeal.

Reversed.

Argued before SCHUCHMAJST and HASCALL, JJ.

A. J. Oishei, for appellants.

, J. Palmieri, for respondent.

The authorities submitted do not uphold the contention of the respondent, because not applicable to the status of the parties hereto at the time of the trial. While it is beyond question that, if plaintiff ultimately prevail against the other two defendants, he might, if the facts so justified him, by proper steps reach the property of appellant, yet he cannot now force a liability not actually arisen nor duly proven against it. We think that upon the close of the case made against the appellant association at the trial it should have received the relief we now conclude it was clearly entitled to receive. Judgment reversed, and complaint dismissed, with costs and disbursements of trial below and of appeal to this court to the appellant association.

SCHUCHMAJST, J., concurs.