Rankin v. Killion

190 Misc. 26, 73 N.Y.S.2d 502, 1947 N.Y. Misc. LEXIS 3053

• Court: New York Supreme Court
• Decided: July 9, 1947
• Status: Published

Opinion

Benvenga, J.

This is a motion for summary judgment dismissing the complaint. The action is brought against the defendant, as treasurer of the Democratic National Committee, pursuant to the provisions of section 13 of the General Associations Law, to recover a sum of money alleged to be due under an agreement entered into by former officers of the committee.

That the Democratic National Committee is an unincorporated association and that an action may be maintained against it by serving process upon its treasurer is not seriously disputed. But it is contended that the action was improperly instituted against the present defendant, as treasurer, and that service of process upon him was ineffective, since the debt was contracted by former officers of the committee and not by any of the officers in behalf of the committee as presently constituted. The contention is unsound. The action, although in form against an officer, is really against the association itself. Indeed, service of process upon a former officer would be insufficient, even though he may be a member -of the association. The service required by the statute is representative in its nature. The debt is not that of the officer as an individual and is not enforcible against him alone (Mason v. Holmes, 30 Misc. 719, 720-721; see Lloyd v. Sloan, 259 App. Div. 615, 617, and cases cited).

It may be, as defendant contends, that the National Democratic Committee, as presently constituted, is not liable for the debt. That contention is based upon disputed issues of fact which-cannot be determined upon this motion. Nor does the fact that the committee is fluctuating in its membership present any obstacle to the recovery of the judgment, however it may affect its collection (Cohn v. Borst, 36 Hun 562, 564).

The motion is accordingly denied.