Strebe v. Albert

These voluntary associations are commonly called joint stock companies, and they may, by force of the statute, sue and be sued in the name of the president or treasurer for the time being (L. 1849, p. 389 ; L. 1851, p. 838; L. 1853, p. 283); while not corporations, they possess many of the attributes peculiar *378to corporations. While the members, as between themselves, are not partners, they are subject to many of the legal liabilities and disabilities of partners.

Bat as between an individual member on the one hand and the association in its official capacity on the other, it is to be regarded as a quasi corporation, capable of being sued by such member for any breach of its official obligations, of which the agreement to pay benefits to a sick or distressed brother is a familiar illustration. While the association may be sued by á member, he may in turn be sued by it.. Thus, if the individual member be in arrears for dues or the like, the association may, by action in the name of its president or treasurer, enforce the payment of such arrearages.

These illustrations are given to show the practical relation existing between the society as such, on the one hand, and the individual lumbers, upon the other, without which correlative rights, with the means of enforcing them, these useful organizations would be incapable of exercising their ordinary functions or answering the purposes of their creation.

That a voluntary dssociation like the present may be sued by one of its members see Westcott v. Fargo (61 N. Y. 549); Tibbett v. Blood (21 Barb. 650); Boone's Manual of the Law of Corporations, § 73; Westcott v. Fargo (6 Lans. 319); and that it may sue one of its members see Clancy v. Terhune (1 City Ct. 239). The principle involved here is unlike that decided in McMahon v. Rauhr (47 N. Y. 67). That, was an action between the individual members of a voluntary association, and the court properly held that they must seek their remedy in a court of equity.

In the present case the funds in the hands of the defendant, as treasurer, belong to the association ; the defendant has no severable proprietary interest in said fund, nor lias lie a right to any proportionate amount thereof, unless, perhaps, on the dissolution of the asso*379ciation, he shall then be a member. He was the mere fiduciary of the society, holding its funds subject to its orders and directions. The association in due form ordered him to pay over the money in his hands ; he refused to obey such orders, and was consequently guilty of a conversion of the funds of the association, for which he was liable to arrest. If for any lawful reason he was justified in disobeying these orders, he should have made his excuse affirmatively appear, and the court would have passed upon its sufficiency ; but the case upon the plaintiff’s papers presents .thesimple question whether the fiduciary servant of a voluntary association can arbitrarily disobey its orders, keep its funds, and exempt himself from the ordinary jurisdiction of the court to compel him to pay them over by technical rules, which, for obvious reasons, apply exclusively to remedies between partners for the winding up of their partnership concerns.

We can subscribe to no such inequitable doctrine.

Fiduciaries of voluntary associations, or of public trusts, must render a just and faithful account of their stewardship whenever called updn by their principals, or be held to answer by the ordinary tribunals of justice for every breach of their sacred duty.

It follows that the order appealed from must be reversed, and the order of arrest reinstated, with costs.

Shea, Oh. J., and Nehebas, J., concur.