McCabe v. Goodfellow — 39 N.Y. St. Rep. 941

Majority

p. 941

James E. McCabe, Resp’t, v. John T. Goodfellow, Treasurer, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed July 7, 1891.)

Headnote

1. Associations—What constitutes.

Proof that a meeting of more than seven persons was held; that it was

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resolved to form an association, its name agreed upon, a constitution adopted and signed, a president and other officers appointed, and that the association commenced and continued the business which was the purpose of its organization, is sufficient to justify a finding that it was an unincorporated association, consisting of seven or more persons, and within the provisions of §1919 of the Code.

2. Same—Action by mbmbee fob sebvicbs.

The fact that a person who has performed services under its employment is a member of the association, is not a bar to his maintaining an action for such services. (Meewin, J., dissenting.)

3. Attobneys—Action fob sebvicbs—Pasties.

Where there is an arrangement between the members of a legal firm, that each shall attend to specified classes of work 'and receive the pay therefor, either may maintain an action for the services performed by him, and the other partner is not a necessary party thereto.

Appeal from a judgment entered in Oneida county, April 3, 1890, for $1,883.90 on the report of a referee.

The plaintiff, in his complaint, alleged that the Law and Order League of the town of Kirkland was a voluntary, unincorporporated association, consisting of more than seven members; that it was organized for the purpose of suppressing the sale of intoxicating liquors in the town of Kirkland, and to prosecute persons violating the excise law residing in that town; that the defendant, John T. Goodfellow, was treasurer of said league; that the defendant was indebted to the plaintiff in the sum of $3,000 for services rendered for said league as an attorney and counselor at law, between March 1, 1888, and the first day of June, 1889, and demanded judgment for that sum.

The answer contained a denial, and also contained allegations that such league was not a permanent organization, and not “ incorporated ” within the spirit, meaning and intent of § 1919 of the Code of Civil Procedure; that the alleged services were rendered by Williams & McCabe, and not by the plaintiff; that Elliott S. Williams was a necessary party plaintiff; that the plaintiff received certain amounts from the settlement of cases in which he acted as attorney; that most of the services performed were rendered for and upon the retainer of the overseer of the poor of the town of Kirkland; and that the plaintiff was a member of such association and of its committee.

The referee found that the Law and Order League of the town of Kirkland was an unincorporated association, consisting of more than seven members; that John Goodfellow, the defendant, was treasurer of such association; that the objects.of the association were to give moral support to the village and town officers in the discharge of their official duties, and to see that they were faithful in enforcing the village and town laws, especially those regulating the traffic in intoxicating drinks; that the league, through its officers, duly authorized agents and committees, retained the plaintiff, who was an attorney and counselor at law, to perform services and bring actions for penalties arising under the excise law of the state; that, under such retainer, the plaintiff performed services outside of litigated business amounting to thirty-five and one-half days, which were worth three hun

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dred and fifty-five dollars; that under such retainer he also brought and prosecuted ten actions to recover penalties fox alleged violations of the excise law; that the services rendered in said actions, including disbursements, were worth the sum of fifteen hundred dollars; that on or about May 27 1889, the league refused to recognize any liability to the plaintiff upon its retainer for services rendered; that the plaintiff thereupon gave notice that he should have no more to do with the cases, and that his employment then ceased; that the plaintiff received, to apply on his services, the sum of one hundred and seventy-five dollars, leaving unpaid thereon the sum of sixteen hundred and eighty dollars, which was due and payable.

As a conclusion of law, the referee held that the plaintiff was entitled to recover of the defendant sixteen hundred and eighty dollars, and directed judgment accordingly, with costs and disbursements to be taxed.

C. D. Adams, for app’lt; S. M. Lindsley, for resp’t.

The validity of the judgment in this case is sought to be impeached on the grounds: 1. That the findings of

the referee were not sustained by the evidence; 2. That the referee erred in receiving evidence of the value of the plaintiff’s services; and 3. That he erred in denying the defendant’s motion for a nonsuit.

A careful reading of the appeal book discloses that there was a severe conflict in the evidence upon the question whether the defendant was employed by the Law and Order League to perform the services for which he recovered in this action. The evidence of the plaintiff was that he was thus employed, and the documentary and other evidence introduced by him on the trial tended to corroborate his testimony. The evidence introduced by the defendant tended to show that there was no such employment, or at least to show that the plaintiff agreed to look to the town of Kirkland for compensation for his services, and not to the league. The referee, upon this evidence, has found for the plaintiff. His finding is fairly sustained by tlie proof, and should, we think, be upheld. Baird v. Mayor, etc., of City of N. Y., 96 N. Y., 567 .

If we are correct in concluding that the evidence was sufficient to justify the referee in finding that the services performed by the Ílaintiff were rendered in pursuance of an employment by the iaw and Order League, it follows that the evidence of the expert witnesses, as to the value of the services performed, was properly admitted. The objection to this evidence was that no employment of the plaintiff by the defendant, or liability on the part of the defendant, was shown, and that it was incompetent As the proof tended to show that the plaintiff was employed by the league, and that it was liable for his services, we think this evidence was clearly competent.

The only other question we are called upon to consider, 'is whether the referee properly refused to grant the defendant’s motion for a nonsuit. The grounds of this motion, briefly stated,

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were : 1. That the Law and Order League was not such an association as is contemplated in § 1919 of the Code of Civil Procedure ; 2. That there was no evidence that it ever employed the plaintiff or authorized any person or persons to do so; 3. That as the plaintiff was a member of the league, he could not maintain this action; and 4. That the services were performed by the firm of Williams & McCabe, and the action could not be maintained in the plaintiff’s nama In examining the question of the propriety of the referee’s ruling, we will examine the several grounds, upon which the motion was based, in the order in which they are stated.

In. this' case the proof disclosed that a meeting was held; at such meeting it was resolved to form an association; the name of the association was agreed upon; a constitution was adopted; it was signed by the members; a president and other officers were subsequently appointed, and the association commenced and continued the business which was the purpose of the organization, with energy and persistence, until the time of the commencement of this action. We think the evidence was sufficient to justify the referee in finding that the Law and Order League was an unincorporated association consisting of seven or more persons, and within the provisions of § 1919 of the Code of Civil Procedure. National Bank v. Van Derwerker, 74 N. Y., 234 , 239 ; Ebbinghousen v. Worth Club, 4 Abb. N. C., 300 ; Flagg v. Swift, 25 Hun, 623 .

Nor do we think the appellant’s claim that the association never employed the plaintiff, nor authorized any person to do so, was sustained by the evidence. On the contrary, as we have already held, the evidence fully sustained the finding that the association, through its duly authorized agents and committee, retained the plaintiff to perform the services and bring the suits for which a recovery was had herein. Indeed, the evidence tends quite strongly to show that such employment was by the association, or at least was ratified by it We, therefore, find nothing in the second ground that would have justified the referee in granting the defendant’s motion.

That the plaintiff was a member of such association was, upon sufficient evidence, found by the referee, but he refused to find that he was a member of a committee of such association. We' do not think the fact that the plaintiff was a member of the association was a bar to his maintaining an action for his services. Westcott v. Fargo, 61 N. Y., 542 ; Saltsman v. Shults, 14 Hun, 256 ; Fritz v. Muck, 62 How. Pr., 73 ; Sander v. Edling, 13 Daly, 238 ; Winter v. Hamm, 5 Civ. Pro., 195.

But it is said that the services for which the plaintiff recovered were performed by the firm of Williams & McCabe, and hence, that the action could not be maintained by the plaintiff without joining Williams as a party, or acquiring title to his interest in the claim. The evidence does not sustain this contention. While it was shown that the actions were brought in the name of Williams & McCabe, it was also proved that the arrangement between the members of that firm was, that a certain class of the business com

Dissent

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ing to their office should be done by one member of the firm and that he should receive the pay therefor; that another class of business should be performed by the other, and he receive the fees therefor, and that in the business in question the plaintiff was the only person interested. Under these circumstances we think the action was properly brought in the plaintiff’s name. These considerations lead us to the conclusion that the referee properly denied the defendant’s motion for a nonsuit

We think the decision of the referee was fairly sustained by the evidence, that there are no errors in his rulings that require a reversal, and that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., concurs.

—Under § 1919 of the Code an action in this form can be maintained only upon a cause of action “ for or upon which the plaintiff may maintain such an action or special proceeding against all the associates.” In the present case, I doubt very much the right of the plaintiff to make all the associates personally liable, for that is the effect of his claim. Ho such liability was in contemplation. The plaintiff was one of the associates, and is chargeable with knowledge of the situation. The funds were to be raised by voluntary contribution or subscription. The plaintiff himself seems to have been a subscriber to a guarantee fund. The special or central committee had no authority to pledge the credit of all who signed the constitution.