Strauss v. Thoman

MacLean, J. (dissenting).

The plaintiff appeals from a judgment herein in favor of the defendant, but presses only the first cause to recover for sick benefits to which she claims she is entitled. The plaintiff brings her action under section 1919 of the Code of Civil Procedure against the treasurer of the defendant unincorporated association; but, notwithstanding it is stated in Boyd v. Gernant, 82 App. Div. 456, that such an action may be maintained, the Court of *78Appeals has said, “ the plaintiff cannot, in any case, maintain such an action against the officer, unless the debt which he seeks to recover is one upon which he could maintain an action against all the associates by reason of their liability therefor, either jointly or severally. This, therefore, is the test to be applied.” McCabe v. Goodfellow, 133 N. Y. 89. Reference to the constitution and by-laws of the defendant, while providing for the payments of fees, dues and assessments by its members and sick benefits to those upon certain conditions entitled thereto, fails to disclose or to indicate any intention on the part of the associates to become personally bound. If all of the associates had paid all dues owing at the time of the institution of this action, certainly it may not be maintained that the plaintiff would have a cause of action against them for sick benefits, not even if the treasury were empty; because the by-laws, rule 15, provide the manner in which the funds of the lodge shall be increased, should sick benefits or other expenses reduce the funds to $100. We may say, as said by the court of last resort in McCabe v. Goodfellow, supra (p. 94) : “ We fail to discover anything in the organization of this association, or in its constitution, or professed objects, or in the methods which it adopted for the conduct of its affairs, which indicates an intention on the part of these members to become personally bound.”

The plaintiff, failing to establish the liability of her associates to pay her claim, or that her claim rests upon the faith of any agency, express or implied, whereby her associates pledged their personal credit for its payment, is not entitled to recover against the defendant as treasurer of the lodge. Lightbourn v. Walsh, 97 App. Div. 187. The judgment must, therefore, be affirmed, with costs of this appeal. Code Civ. Pro., § 466; Hayden v. Hayden, 8 App. Div. 547, 549.

The judgment should be affirmed, with costs.

Judgment reversed and new trial ordered, with costs to appellant to abide event, with leave to respondent to appeal to Appellate Division.