It is alleged in the complaint that Company D of the Seventy-first Regiment of the National Guard of the State of New York -was at the times referred to in this action an unincorporated asso-' ¡ciation consisting of more than seven persons, organized and having Its office in the city of New York, and that the defendant, Edward ¡J. Flack, was the treasurer thereof. These allegations are admitted In the answer. It is then alleged that the plaintiff Stikeman and one Wap share on the 15th of September, 1899, delivered to Company D, at its request* certain goods, wares- and merchandise, and performed for it certain services and furnished material, for which the association agreed to pay the sum of $446.50, which. was the reasonable value of the goods, services and materials, and that no part of it had been paid. It is further alleged that this claim was afterwards assigned to these plaintiffs, who ask judgment for the amount of the claim. The answer, while admitting the organization of Company D and that Flack was its treasurer, denied upon information and belief the other allegations of the complaint.
1 It appeared that in September, 1899, one Elmendorf, a member of Company D, employed the plaintiffs’ assignors to bind a certain number of souvenir books of that company, and that the agreed price for the binding, boxing and delivery was $446.50 ; that the work was done and the books Were delivered to Elmendorf, and as nothing was paid upon them this action was brought. The defense was that he was not the authorized agent of this company to enter Into a contract. It was made to appear that in 1897, before the breaking out of the Spanish war, a committee had been appointed by the company to arrange for a trip by it to Niagara Falls; that on account of the breaking out of the war and the volunteering of ¡this regiment for service, the trip failed, but that the committee was not discharged and continued in existence after the war was closed; that on the 27th of October, 1898, the committee entered into a contract with John B. Elmendorf, by which he, in behalf of the memorial souvenir committee, Company D, 71st Regiment, N. G., N. Y.,” was to assume entire charge and control of the manuscript, advertising and manufacturing of á memorial souvenir, and was to produce the book described in the contract and procure it. to be bound. The committee were to allow Elmendorf as remuneration *279all money and stock received in excess of the actual cost of manufacturing 2,000 copies, and the sum of $2,000, all the drawings, photographs and electrotypes made for the souvenir, and all revenue accruing from subsequent editions, should any be issued. There was a further agreement as to the way the $2,000 was to be paid to the company or the committee.
That the memorial committee bound themselves by this agreement cannot be denied, and the only question is whether there was sufficient evidence to warrant the jury in finding that this contract was either made by the authority of the company, or that the action of the committee was subsequently ratified by the company after the contract had been entered into.
It was made to appear that the committee was never discharged; that it went on and made this contract for the souvenirs, and that all the members of the company knew that the contract had been made with Elmendorf and that he had contracted to get up the books, and that the committee had authorized him to get it up just as they would any business man or contractor. Eo objection was made by any of the company; it was understood that the company was to receive the profits; they were willing to take the chances of making the $2,000, and they knew that the souvenir being gotten up would Lave to be paid for by them if they wanted it. It appeared that it was stated in one of the company meetings by Elmendorf that he had made this contract with the company but was not at liberty to state the particulars; that he had agreed to make the souvenir and would pay the company $2,000, and that he was to assume all liability and that the company would not lose anything. It does not appear that any objection was made to the scheme when this information was .given, but, on the contrary, they decided to take the chance of making this money. The true state of the case undoubtedly is, that while the company had not by actual resolution or express affirmative action given any authority to the memorial committee to make this contract, yet they knew that the contract was made, and while they were not aware of the precise terms they did know that the company would share to the extent of $2,000 in the contract, and they were not unwilling to permit this contract to go through. That was sufficient to warrant the jury in coming to the conclusion that although the company may not have originally authorized the com*280mittee to make this contract, yet it was ratified by the company.after its existence was made known.. It is not necessary to bind this association that there should be express • authority to make the contract by resolution. It may be bound by an implied contract as well as by an express one, and when the evidence is such as to warrant the jury in coming to the conclusion that the joint-stock -association, knowing that a contract has been made which may be for its benefit, has. accepted, it after such knowledge has been given to it, that evidence is sufficient to . warrant a determination that it has assumed liability for the contract.
For these reasons the judgment and the order must be affirmed, with costs.
Yan Brunt, P. J., and Patterson, J., concurred; Ingraham and Hatch, JJ., dissented.