(dissenting). Plaintiff-appellant commenced this action under section 12 of the General Associations Law, which states in part that “ An action or special proceeding may be maintained, by the president or treasurer of an unincorporated association to recover any property, or upon any cause of action, for or upon which all the associates may maintain
*505such an action or special proceeding, by reason of their interest or ownership therein, either jointly or in common.” The record before the court upon this appeal establishes, without contradiction, that one Eduard Turna has succeeded to whatever office Alois Vicherek formerly held in the Czechoslovak Bed Cross. This is not a suitable occasion to determine the status of this organization, which is alleged in the complaint to be an unincorporated association with its office and principal place of business in Prague, Czechoslovakia. The memorandum order appealed from appears to accept as true these facts as they are alleged in the complaint for the purpose of this application for substitution, and indicates that the motion would have been granted if Vicherek had submitted to an examination before trial. Vicherek’s failure to do so does not, as it seems to me, constitute a basis for denying the substitution. Accepting the facts as they are alleged in the complaint, which must be done for the purposes of this motion, the cause of action, if it be sustained, does not belong to Vicherek but to Czechoslovak Bed Cross. The order to take Vicherek’s deposition was granted upon notices of motion to take his testimony “ as President of the Czechoslovak Bed Cross as an adverse party before trial ”, and the order of modification by this court upon appeal, directs that his testimony be taken in that capacity. It is well settled that an examination before trial of an adverse party cannot be taken in the person of a former officer, as in McGowan v. Eastman (271 N. Y. 195, 198), wherein it was said: “ But examination of a former employee of a party is not examination of that party through the former employee. It is nothing more than the examination of a witness. This is the rule which has long been applied by the intermediate appellate courts in this State and which we approve. (Chartered Bank of India v. North River Ins. Co., 136 App. Div. 646; Searle v. Halstead & Co., 139 App. Div. 134; Western Elevating Assn., Inc., v. Chapman, 238 App. Div. 14.) In the disposition of this motion, power rather than discretion was involved and we hold that the court was without power.” The reason for this rule is not far to seek. The testimony by deposition of an adverse party taken before trial, has the effect of an admission against interest by the party, and is introduced into evidence at the trial like other admissions (Nixon v. Beacon Transp. Corp., 239 App. Div. 830; Galbraith v. Galbraith, 248 App. Div. 914; Kozuch v. Bachmann, 244 App. Div. 250; Fletcher v. Di Giovanna, 269 App. Div. 1060; Cooperative G.L.F. Produce v. Glass & Sons Wholesale Grocers, *506180 Misc. 541; Erdenbrecher v. Erdenbrecher, 188 Misc. 94). That is the reason for the distinction in section 304 of the Civil Practice Act, concerning the conditions under which depositions may be read in evidence. That section provides that a deposition, except that of a party taken at the instance of an adverse party, may be read in evidence only if the witness is deceased or is at a greater distance than one hundred miles from the place where the court is sitting, or under some other specified condition. These conditions do not apply to the examination of an adverse party, since his or its admissions against interest are always to be received in evidence (Gangi v. Fradus, 227 N. Y. 452). An admission is not binding on a corporation or an unincorporated association, however, if made by one who has ceased to be an officer. Such a declaration has no greater effect than if made by any stranger. That is the reason on account of which a former officer can be examined only as a witness. This was again recognized in McCabe v. Interstate Iron & Steel Co. (262 App. Div. 777) where the court said: “ The order and judgment rest solely upon certain admissions made by a former treasurer of appellant at an examination before trial. Since such witness was not an officer or employee of appellant when he was examined, and since this case does not come within recently enacted legislation (Laws of 1941, ch. 921), his examination was not an examination of appellant and was ‘ nothing more than the examination of a witness ’ (McGowan v. Eastman, 271 N. Y. 195,198), who then had no power to bind the corporation through admissions.”
This cause of action, if it be maintainable at all, belongs not to Vicherek but to an unincorporated association known as Czechoslovak Red Cross (Kehoe v. Leonard, 176 App. Div. 626; Rankin v. Killion, 190 Misc. 26, affd. 273 App. Div. 946; Thomann v. Flynn, 251 App. Div. 325). Section 14 of the General Associations Law provides that a cause of action in favor of an unincorporated association does not abate upon the resignation of the officer through whom it has been brought; on the contrary, this section directs that “ If the officer, by or against whom it is brought, dies, is removed, resigns, or becomes otherwise incapacitated, during the pendency thereof, the court must make an order, directing it to be continued by or against his successor in office, or any other officer, by or against whom it might have been originally commenced.”
Special Term has no discretion to decide whether a cause of action belonging to an unincorporated association shall abate *507under these circumstances; the statute expressly forbids abatement. Cases such as Coit v. Campbell (82 N. Y. 509), Forster v. Cantoni (19 App. Div. 306), Riglander v. Star Co. (98 App. Div. 101, affd. 181 N. Y. 531), Lyon v. Park (111 N. Y. 350) and Pringle v. Long Island R. R. Co. (157 N. Y. 100) deal with the exercise of discretion in entirely different respects. Most of them deal with laches, where prejudice has resulted due to delay in applying for substitution. Nothing of that sort is presented in this instance. Here it is no longer possible to examine plaintiff through Vicherek, since he is no longer president of the plaintiff association, and this application for substitution of the new president was promptly made. Without a trial, Special Term could not bar whatever cause of action plaintiff may have, nor relegate plaintiff to the antiquated procedure by bill of revivor. Section 14 states that “ the court must make an order, directing it to be continued by or against his successor in office ”. (Italics supplied.)
The effect of the order appealed from is to prevent plaintiff from having a day in court, inasmuch as leave to renew is meaningless “ after the plaintiff has complied with the previous orders of this Court directing an examination before trial.” The statement in the majority opinion is erroneous that this condition imposed by Special Term is one with which there should be a ready compliance. Vicherek cannot be examined as an adverse party, for the reasons above stated. The order is equivalent to a direction that Vicherek be re-elected as president, if this action is to proceed.
From what has been said, it does not follow that defendants-respondents cannot examine Vicherek as a witness if they move to examine him as such. Moreover, plaintiff might well be restrained from trying the action until after Vicherek has been produced in this State for examination as a witness, or, if not Vicherek, then someone else familiar with the facts. Those questions are not presented now. The only ruling presently to be made concerns whether the action can proceed in the name of the man who is now president instead of in that of its former officer.
It goes without saying that permitting this substitution should be safeguarded by a clause in the order that it does not constitute in any manner a determination of Vicherek’s or of Turna’s right to demand and receive the $115,744.99 which is the subject of the action, nor that this money was subscribed or donated for any purpose to which it would be devoted if plaintiff received it.
*508Failure of Vicherek to appear for examination might be cause for punishment by contempt, or, if that were impractical, to stay the trial of the action until Vicherek or someone else familiar with the facts were to be produced for examination as a witness, but it has no relation to abatement or revival of plaintiff’s alleged cause of action. Denial of an application to substitute may not be employed as a penalty for failure of Vicherek to appear for examination.
The orders appealed .from should be reversed and plaintiff’s motions for substitution should be granted, with $20 costs and printing disbursements.
Dore, J. P., and Cohn, J., concur with Bergan, J.; Van Voorhis, J., dissents and votes to reverse, in opinion, in which Breitel, J., concurs.
Orders affirmed, with one bill of $20 costs and disbursements to the respondents. [See post, p. 1020.]