Barasch v. Riemer

59 Misc. 453, 110 N.Y.S. 1053

Opinion

Per Curiam,.

Plaintiff brought an action upon a judgment obtained against an unincorporated association in which defendants were members. The judgment was obtained in an action brought against the president of the. association. Subsequently, after the return of execution unsatisfied, this present action was brought against four of the members of the said society none of whom were parties to the previous action. The action was brought on a writing signed by the president of the society as follows:

“New York, June 5th 1905.

“ Erste Foltichener Roum. Am. Kupp. Pay to the Order of Isaac Barasch One Hundred and Fifteen Dollars ($115) out of our Treasury.

“(Sgd) Abraham Donner.”

The instrument bore the seal of the society.

The plaintiff did not prove that Donner was authorized to sign this instrument and bind the, society. The plaintiff was sufficiently apprised at the. trial that the defendant raised this question.

Where an action is brought against the individual members of an unincorporated association, plaintiff must allege and prove, besides the original judgment and the issuance and the return of execution unsatisfied, such facts as are sufficient to make out the original cause of' action against the association. Allen v. Clark, 65 Barb. 563; Witherhead v. Allen, 3 Keyes, 562; Peckner v. Webb, 35 Mise. Bep, 291.

Present: Gildersleeve, Dayton and Gerard, JJ.

Judgment reversed and new trial ordered, with costs to appellants to abide event.