The majority finds there is sufficient interdependence between the various transactions here involved to satisfy the “ common or general interest ” requirement of section 195 of the Civil Practice Act (CPLR 1005, subd. [a]) so as to permit maintenance of a class action for damages for breach of contract. I am unable to agree.
The plaintiffs, sometime prior to December 9, 1962, each paid $25 membership fee to the Playboy Club organization. Each executed a separate contract, if the membership application be so termed, in which appeared the following: “ I understand that if membership application is accepted I will receive a key entitling me to full lifetime membership privileges at all Playboy Clubs in whatever cities they are now or may * * * be established. I also understand that credit will be extended to me -* * * at each and every Playboy Club location” (emphasis supplied). No other representation appears in the *7application. Plaintiffs allege receipt of the keys and do not claim denial of credit, or of membership privileges at other Playboy Clubs. Plaintiffs, 5 out of an asserted 50,000 (plaintiffs ’ estimate), seek damages in the sum of $1,250,000, the total sum purportedly collected from the 50,000, an accounting and repayment, together with counsel fees. Their second cause of action is based upon an alleged breach of contract by Playboy Club of New York, Inc., in failing to acquire, operate and maintain a private club.
The first question must be whether the issue is one of common or general interest to all persons who became members so as to empower plaintiffs to act in their behalf without express authorization. There must be a union or community of interests to warrant a representative action. "Separate wrongs to separate persons, though committed by similar means and even pursuant to a single plan, do not alone create a common or general interest in those who are wronged.” (Society Milion Athena v. National Bank of Greece, 281 N. Y. 282, 292; Medvec v. 333 East 69th St. Corp., 14 A D 2d 849.)
That part of the motion pursuant to rule 103 and subdivision 2 of rule 107 of the Rules of Civil Practice directed to the second cause of action, and the papers in support thereof, make clear that plaintiffs seek to have the corporate entity of Playboy Club of New York, Inc. disregarded and claim, at most, a partial failure of consideration. How important is the alleged breach of contract to other members cannot be determined, nor even if they desire to destroy whatever benefits are presently conferred, by their status. Common wrongs do not necessarily confer common rights or authorize a single common action. These plaintiffs have no interest in any cause of action or recovery by others, and it may well be that the remedy desired by other members differs from that sought here, i.e., the destruction of a particular enterprise and disbursement of possible invested capital. This action seeks to deprive such members of their choice of remedies. Moreover, it would be a repudiation of the only tie they have in common (Brenner v. Title Guar. & Trust Co., 276 N. Y. 230).
Appellants assert the contracts included letters of solicitation, promotional material, advertisements, etc., issued over a period in excess of two years. If we assume this to be true, it should appear to what incentive each member responded, and whether there is a breach of the proposal as such member understood it and whether such breaches are identical. This is not the case of a single joint right or single joint liability. For while it is alleged there was a failure of consideration, it does not affirm a*8tively appear that the .extent of the failure in each case, if failure there was, is the same. The measure of recovery may well vary with the nature and extent of the wrong. A presumption of common purpose by the members attaching only to one part of the alleged consideration is hardly warranted.
This is not a stockholders’ derivative action, or an action where common cause and the dictates of justice and expediency warrant a representative action. To permit 5 out of 50,000, under the circumstances here shown, to maintain a representative action could lead to an absurd consequence. A few disgruntled persons in a large enterprise could seek its destruction by this method. This would seem an undue extension of the principle and hardly one contemplated by the statute.
I therefore dissent in part and vote to affirm the entire order appealed from.
Breitel, McNally and Steuer, JJ., concur with Botein, P. J., Stevens, J., dissents in part in opinion.
Order, entered on August 7, 1963, modified, on the law, to the extent of denying defendant-respondent’s motion insofar as it is addressed to the second cause of action, and, as so modified, affirmed, with costs to abide the event.