Fitz v. Dullzell

Present — Peck, P. J., Dore, Cohn, Van Voorhis and Shientag, JJ.; Cohn, J., dissents and votes to grant the motion to dismiss the second amended complaint herein as to the ten named plaintiffs with leave to serve a third amended complaint in the following memorandum: The only reasonable interpretation of the allegations of the second amended complaint is that the ten plaintiffs named in paragraphs “ 2 ” and “ 3 ” thereof, except plaintiff William H. Cronin, are not members of the defendant American Guild of Variety Artists, an unincorporated association. So construed, the complaint fails to set forth a cause of action in behalf of any of said ten plaintiffs. Moreover, as none of those plaintiffs is a member of the association, nor is any one of them its president or treasurer, said plaintiffs cannot sue in the association’s behalf (General Associations Law, § 12).