McCabe v. Goodfellow

(dissenting.) Under section 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 guaranty fund. The special or central committee had no authority to pledge the credit of all who signed the constitution.

The validity of the judgment in this case is sought to be impeached pn 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 s'ervices, and not to the league. The referee, upon this evidence, has found for the plaintiff. His finding is fairly sustained by the proof, and should, we think, be upheld. Baird v. Mayor, etc., 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 plaintiff were rendered in pursuance of an employment by the law 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, were (1) that the law and order league was not such an association as is contemplated in section 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 name. 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 *379with 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 section 1919 of the Code of Civil Procedure. Bank v. Van Derwerker, 74 N. Y. 234, 239; Ebbinghousen v. Worth Club, 4 Abb. N. C. 300; Flagg v. Swift, 25 Hun, 623. Ñor do we-think the appellant’s claim that the association never employed the plaintiff, nor authorized any petson 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 lie 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 Civil Proc. R. 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 coming 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., concurred.