Georgeson v. Caffery

Headnote

1. Corporations—Incorporation—-When it will be presumed.

Plaintiff was the president and manager of a mutual aid union; he and four others had duly executed and acknowledged a certificate purporting to be one of incorporation; it was approved by a supreme court justice and filed in the county clerk’s office of the county where the society’s office was situated; thereafter plaintiff sued the treasurer of the society for his sglary, alleging that the society was unincorporated; on the trial itjWas not shown whether or not the certificate was ever filed in the office of the secretary of state. Held, that the trial court erred in presuming that the certificate was not filed as required by law.

3. Associations—Action against treasurer—What proof necessary to RECOVERY.

On the trial of such case it appeared that the members, besides their admission fees, were required to pay certain monthly dues; nothing else was required of them, and if they did not so pay they ceased to be members; the trustees were by their by-laws authorized to employ a manager at a reasonable salary, but payment of this and other expenses was provided for out of a fund raised in a particular way. Held, that plaintiff had not proven that all the members of the association were liable, either jointly or severally, to pay his claims, and therefore that he could not recover, although the association was an unincorporated one.

Appeal from a judgment entered in Onondaga county on "the 29th November, 1892, upon a verdict rendered at the Onondaga circuit on die 21st November, 1892, for $749.42 in favor of the plaintiff. In the notice of appeal it is stated that ■“the appellant intends to bring up for review upon such appeal the order denying a motion for a new trial, errors in the judgment and all other questions of irregularity, law or fact ■disclosed by the record.”

The action when commenced on the 5th January, 1892, was against Frederick H. Ebeling as treasurer of the Empire Mutual Union. In the complaint it was alleged that said union was an unincorporated association, composed of seven or more persons, and that Ebeling was at the time of the commencement ■of the action the treasurer of the association; that the plaintiff "was its general manager from the second day of December, 1890,

to the 20th November, 1891, at an agreed compensation of twenty-five dollars per week, and that at the commencement of the action there was due and unpaid to the plaintiff on account, of such services the sum of $683.37, with interest from November 20, 1891. The answer contains a general denial.

Upon the trial, it appeared that on the 26th September, 1890,,. the plaintiff and four others duly executed and acknowledged a certificate purporting to be a certificate of incorporation of the Empire Mutual Union of Syracuse, N. Y. This certificate stated a desire to form a society for social, mutual benefit and benevolent, purposes, pursuant to chapter 267 of the Laws of 1875, entitled “An act for the incorporation of societies or clubs for certain lawful purposes,” and the acts amendatory thereof, and that the particular business and objects of the society were as follows: “ To-gather together in social and friendly union persons of good character and standing; to assist the members of said society in obtaining help, aid and employment, both outside and among themselves; to join together the members in mutual efforts to assist each other in economic and benevolent purposes and enterprises r. to provide regular relief, aid and benevolence among the members, and to promote in every manner possible the interests of the members among themselves. ” The number of the trustees was five, and as named for the first year they were the same persons who executed the certificate. This certificate was approved by a justice-of the supreme court, and was, on the 26th September, 1890, filed and recorded in the office of the clerk of Onondaga copnty, that being the county where the office of the society was situated. It was not shown whether or not the certificate was ever filed in the office of the secretary of state. The court below assumed that* it was not By-laws were adopted which stated that the purpose of the union “is to join together the members in mutual union and encouragement, to enable them to gather together in one sum which can be used to some advantage the little savings which-members are able to contribute.” It was provided that any person might become a member by making application and paying - the admission fee, and $1.25 per month thereafter on each certificate held by him or her during the continuance of membership. The admission or membership fee was $2.50 for one certificate and $1.25 additional for each additional certificate, no member to have-more than four. The form or contents of this certificate do nob appear in the case. The manner of payment of the monthly dues-was provided for, and in case of non-payment the certificate lapsed- and became void, and all moneys paid forfeited to the union. A. general fund and a benefit fund were provided for, the general, fund to consist “ of the admission fee and other fees and fines, and-the first month’s dues, twenty per cent, of all monthly dues and ten per cent, of benefit fund for collection,” the benefit fund to-consist of “ one dollar per month from each certificate, less ten percent. commission collections, and be used exclusively for members on their certificates.” It was provided that “ on the fifth day of-each month all moneys deposited in the benefit fund shall he applied to the payment of maturing certificates after deducting:

fifty dollars, less the monthly dues previously paid and readmission fees.” There was also a provision that “the trustees shall appoint one as general manager, who may be removed for cause, at a salary consistent with his duties, who shall have general supervision of the business of the union.”

At a meeting of the board of trustees on December 1, 1890, at which the plaintiff and four others were present, a resolution was adopted that the plaintiff “ be made general manager of the Empire Mutual Union at a salary of twenty-five dollars a week.” From this time to ¡November 19, 1891, the plaintiff continued to be manager, and this action is for the balance due him for such .services. It was shown that at the time of the commencement of this action there were about 600 members of the association. At the close of the trial, the defendant moved for a non-suit upon the grounds, among others, that there was a de-facto corporation and it could not be treated as an association ; that the plaintiff- being a promoter of the company, its president and actively interested' and engaged in its organization, is estopped from denying that it is a corporation ; that it had not been proved that the association was an unincorporated one consisting of seven or more individuals, as required by § 1919 of the Code. This motion was denied and defendant excepted.

In the course of the trial, it appeared that Ebeling had ceased to be treasurer about the time of the commencement of the suit and that James S.-Caffrey had been elected in his place and was treasurer at the time of the trial. At the close of the evidence, the court directed the entry of an order substituting Caffrey as treasurer, etc., as defendant in place of Ebeling. To this the defendant excepted.