I dissent. The action is brought under section 1919 of the Code of Civil Procedure, which provides that “an action * * may be maintained against the president or treasurer of such an association, to recover * * * upon any cause of action for or upon which the plaintiff may maintain such an action * * * against all the associates by reason of * * * their liability therefor, either jointly or severally. Any partnership or other company of persons which has a president or treasurer is deemed an associ*1014ation within the meaning of this section.” This association, being a company of the National Guard of the State of New York, is not an association engaged in a business which would require that obligations should be incurred to carry out the purposes of its organization. To make its members liable for an indebtedness incurred on its behalf, there must be some evidence that authority was conferred upon the person creating the indebtedness, so that such person has become the authorized agent of the association. It appeared in evidence that Elmendorf represented • himself to the plaintiff as a member of Company D, 71st regiment, but he did not undertake to contract on behalf of Company D. The company never authorized the committee to get up a memorial souvenir, nor was Elmendorf ever authorized by any one, so far as appears, to incur any indebtedness in behalf of the committee or the company. The committee, which appears to have been appointed for the purpose of conducting a trip to Niaraga Palls, constituted itself a “memorial souvenir committee,” and entered into a contract with Elmendorf, by which Elmendorf was to work faithfully in behalf of the memorial souvenir committee to carry to a successful issue the project known as the memorial souvenir of Company D. Elmendorf agreed to assume the entire control of the manuscript, advertising, and manufacturing of the memorial souvenir, and to turn out a book of not less than 100 pages; and the memorial souvenir committee agreed not to interfere with the management of the memorial souvenir, nor to disclose, either directly or indirectly, the terms of the contract, and to furnish Elmendorf with letters from the commanding officers of Company D, with the indorsement of the commanding officer of the regiment, granting Elmendorf authority, as editor and manager of the souvenir; and further agreed to allow Elmendorf, as remuneration, all moneys and stock received in connection with the memorial souvenir in excess of the actual cost of manufacturing* 2,000 copies, and the sum of $2,000. Elmendorf was to receive all revenues accruing from the sale of subsequent editions, should any be issued. The sum of $2,000 was to be paid in three equal payments, of $666.66§; the first being made 30 days after the date of publication, and the remaining two 30 and 60 days thereafter. This agreement was signed apparently by four members of the committee, including Elmendorf, and “Elmendorf & Co.” The terms of this agreement were never, so far as appears, submitted to the company, nor had any of its officers any knowledge of it. So far as the officers of the company were concerned, the only information they had communicated to them was that Elmendorf had made a contract to bring out this book. There is not the slightest evidence to show that the company, or any of its officers, understood that Elmendorf was acting as the representative or agent of the company, or incurring any obligations in its behalf. All the witnesses connected with the company testified that the committee was never authorized by the company to publish this book. The only information ever given to the company or its officers as to this contract was the fact that Elmendorf, as a private individual, was getting out the book under a contract with the committee, the terms of which were not disclosed, and that he was to *1015present to the company $2,000. At the end of the trial, the defendant moved to dismiss the complaint, upon the ground that no agency had been shown. This was denied, and the defendant excepted. The court left it for the jury to say whether the evidence justified the finding that the company had conferred any agency upon Elmendorf to make this contract, saying: ¡ .
“The question in dispute which goes to you for determination is whether the order given for the work was the individual order of Corporal Elmendorf, given on his own account and for his own benefit, or was the order of Company D, acting by its memorial committee and by the company’s authority. * * * It all hinges upon this question of authority from Company D. If Company D authorized this committee to do this, it is liable; if it did not, it is not.”
I am unable to find in this record the slightest evidence that Company D ever authorized Elmendorf to make any contract in its behalf, or that the association as a whole or its individual members were liable for any contract made by Elmendorf. To entitle the plaintiff to maintain this action, he must prove that all the members of the association were liable, and it seems to me that there is not the slightest evidence of such liability.
Whether or not this committee with whom Elmendorf made this agreement would be liable for the debts incurred by him it is not necessary to determine. I do not think that this military organization can be said to have incurred any liability on account of this contract made by Elmendorf.
HATCH, J., concurs.