Kronfeld v. Haines

20 Misc. 102, 45 N.Y.S. 92

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1897
• Status: Published

Opinion

Daly, P. J.

The defendant is sued with others as a member of a voluntary unincorporated association, known as the Mining & Industrial Exchange, to recover for supplies furnished by the plaintiff’s assignor to the association. The defense denied the membership of this defendant in the concern named. It appeared that he signed an application for membership in a concern to be organized, called the American Stock Exchange, and plaintiff claims that there was a mere change of the name of the latter to the Mining & Industrial Exchange, and that the work was done for the association to which the defendant belonged.

• Hot only is proof in support of this claim lacking, but the records of the organization of the Mining & Industrial Exchange show that it was a different institution from the American Stock Exchange. It' appears from the “ Initial Agreement ” that the individuals who had theretofore acted as the organization committee of the proposed American Stock Exchange adopted a resolution to form an association under the title of the Mining & Industrial Exchange of Hew York. They passed a resolution to accept and recognize applications for membership in the American Stock Exchange as .valid applications for membership in the Mining &■ Industrial Exchange; they adopted the liabilities for advertising, printing, stationery and rent incurred on behalf of the former company, conditional upon the discharge of said liabilities being provided for out of such funds of the Mining & Industrial Exchange as might be available after the commencement of actual business; they recognized no claims to compensation for personal services rendered to the American Stock Exchange other than certain specific allowances, to be made conditional upon certain credits on the books of the Mining & Industrial Exchange, and, finally, they authorized the secretary to issue a circular stating that he was instructed by the managing committee of the American Stock Exchange to submit a certain statement, substantially as follows: That owing to internal disputes and mismanagement of the Hew York Mining Exchange " that institution is in the hands of a receiver and a strong demand has arisen for the establishment of a new exchange to take up the business under conditions of greater stability,” etc.; that several propositions have been made to the American Stock Exchange to undertake the business in question and these propositions are accompanied by the assurance of sufficient support; that the managing committee have decided forthwith to establish the exchange and the name under which the business will he carried on will.be the Mining & Industrial Exchange of Hew. York, and if, upon consideration of the foregoing, the party to whom the circular is addressed desires to become one of the governing members of the exchange it will he necessary at once to send in an application on an accompanying form. That the Mining & Industrial Exchange was intended to be a new organization appears from its recognizing and adopting certain liabilities of- the American Stock Exchange and not others. Ho such discrimination could he made if there were a mere change of name.

The initial agreement for-the Mining & Industrial' Exchange was entered into on May 14, 1896, and the circular was issued May 19, 1896. This was about a month- after the defendant Haines had paid in his subscription as a member of the American Stock Exchange, as appears by his check dated April 15, 1896; and it. is not shown that.in response to the circular above referred to he made any application to join the Mining & Industrial" Exchange which, it is evident from the foregoing facts, was a new concern and not the organization to which he had subscribed. The work done by the plaintiff’s assignor, as appears from the bill-in evidence, Was performed for the new concern after its organization and not for the American Stock Exchange, of which alone the defendant Haines was a member. Ho. indebtedness of defendant to the plaintiff or his assignor, therefore, is sho.wn.

Judgment reversed,- new trial ordered, costs to appellant to abide the event.

McAdam and Bischoff, JJ., concur.

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