
    Henry Van Aernam, Resp’t, v. George Bleistien, Pres’t Courier Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Action against joint stock company—Effect of stipulation that
    DEFENDANT IS SUCH AN ASSOCIATION.
    For'the purpose of the trial defendant admitted that “ the Courier company is a joint stock association as alleged in the complaint and that the defendant'was its president.” At the close of the trial defendant moved for non-suit on the ground that the stipulation did not state that the company consisted of seven or more members. Held, that the stipulation was intended to concede that the action was brought in proper form against defendant, as president, and relieved plaintiff from proving the organization of the association.
    2. Same—Libel—Action foe, against joint stock association.
    An action for libel can be maintained against a joint stock association in the name of its president or treasurer;
    3. Same.
    Where there was no request to submit the question of malice to the jury— the objection that the judge omitted to do so, cannot be raised for the first time on appeal to this court.
    Affirming judgment of general term, fifth department, affirming a judgment in favor of the plaintiff, rendered upon the verdict of a jury.
    
      John G. Milburn, for appellant; C. D. Van Aernam, for respondent.
    
      
       See Van Aernam v. McCune, 32 Hun, 316.
    
   Rapallo, J.

The only point made on the part of the appellant on the trial of this action was that the action could not be maintained against the defendant as president of the Courier Company.

Prior to 1849 all the members of an unincorporated joint-stock company or association were necessary parties to an action by or against such company or association, whatever the number of its members might be. 2 Lindl. on Part., 1084. Such an association could not sue in the name of any officer of the association or in the name of its trustees.

By the Laws of 1849 (chap. 258, § 1) it was provided that any joint-stock company or association, consisting of seven or more shareholders or associates, might sue or be sued in the name of the president or treasurer, for the time being, of such joint-stock company or association, and that suits so prosecuted should have the same effect on the joint rights or property of the company as if prosecuted in the names of all the shareholders or associates. The only manner in which the question was raised in this case was by motion for nonsuit at the trial.

The plaintiff put in evidence a stipulation signed by the defendant’s attorneys, whereby it was admitted, for the purposes of the trial, that the Courier Company was a joint-stock association as alleged in the complaint, and that the defendant was its president at the time of the commencement of this action, and that said company published the Buffalo Courier, and had done so for five years last past.

The defendant now claims that its stipulation was ineffectual, as it does not state that the company consisted of seven or more shareholders or associates, but only that it was a joint-stock association as alleged in the complaint; and that by reference to the complaint it appears that the allegation therein was that it was a joint-stock company or association, duly formed and organized and then existing under and by virtue of the laws of the state of New York, without stating the number of associates.

We think that the fair construction of the stipulation is that it was intended to concede that the action was brought in proper form against the defendant as president of the association, and to relieve the plaintiff from the necessity of producing proof at the trial of the organization of the association, and to be so understood by the counsel for the plaintiff. If not intended to have this effect, it was of no avail for any purpose, as it would still have left the plaintiff subject to the necessity of preparing himself with proof of the organization, for he could not prove that the association consisted of seven or more members without proving the organization, and the membership of all the associates. To attach to it the silent reservation now claimed, and which could not have been contemplated by the parties, would make it deceptive and misleading.

The stipulation, read in connection with the complaint, was an admission that the defendant was a joint-stock company or association duly formed and organized and then existing under and by virtue of the laws of the state of New York. This must be deemed to have reference to the statutes of this state, and when it is considered that the act of 1836, under which this action was brought, and all other statutes of this state relating to joint-stock companies or associations, refer to companies or associations consisting of seven or more shareholders or associates (Laws of 1851, chap. 455; 1853, chap. 153; 1854. chap. 245), and that there are no statutes recognizing or referring to joint-stock companies composed of a smaller number of members, it is quite evident that such a company as is referred to in the statutes was intended.

The only other point raised on the motion for a nonsuit was that the action was not of such a nature that it could be maintained against a joint-stock association in the name of its president and treasurer.

. Conceding that the Courier company is not a corporation, but a partnership with some of the powers of a corporation, it is admitted that the association published the paper in which the libel was contained, and we can see no reason why it, and all its members, should not be responsible for a libel published by their authority. The officers of the unincorporated company, or the publishers or editors employed by it, have the same power, when acting within the scope of their authority, to bind the company and all the associates which an ordinary partner or an agent of a partnership has to bind the firm and the copartners.

A further point was raised on the argument of the appeal in this court, which does not appear to have been raised upon the trial, viz.: That the publication complained of was privileged, and there was no proof of actual malice. The plaintiff was, at the time of the publication, a candidate for the office of representative in Congress. He had, at a former period, held the office of commissioner of pensions, and the publication of the defendant complained of, consisted of charges of mal and corrupt conduct of the plaintiff as such commissioner. These charges had been the subject of investigation by a committee of the house, and the proceedings of the committee were before the defendant and were largely drawn upon in the various articles which it published and which are claimed to be libelous, and parts of the testimony, were referred to which tended to establish the charge of malconduct, while the plaintiff claims that the editor of the defendant who wrote the articles did not refer to the parts of the testimony and proceedings which exculpated him.

At the conclusion of the trial of this action, the counsel for the defendant stated to the court that it was not claimed on the part of the defense that there was anything wrong in Dr. Van Aernam’s conduct in the pension office, and the plaintiff’s counsel then stated that upon the defendant’s statement the plaintiff would rest, and thereupon the court charged the jury that there must be a verdict for the plaintiff for nominal damages at least. To this charge the defendant’s counsel excepted, and the jury rendered a verdict for the plaintiff for $2,000 damages.

The defendant’s counsel now raises the point that the charge was erroneous because the judge should have submitted the question of malice to the jury.

We think this objection comes too late. There was no request to submit that question to the jury, nor was it claimed on the motion for a nonsuit that there was no evidence of malice. The nonsuit was asked for on different grounds. If the defendant desired to go to the jury on that specific point, he should have made the request, or should have stated the ground of exception to the charge at a time when it would have been in the power of the court to correct it in the respect complained of. The court evidently assumed to decide, upon the evidence, that the publications were not fair criticisms on the official conduct of the plaintiff, and, therefore, that they were not priviledged.

Without deciding whether or not, under the evidence in the case, it was within the province of the court to pass upon that question, we are of the opinion that if the defendant deemed himself entitled to have it left to the jury, he should have made the claim at the trial.

The judgment should be affirmed.

All concur, except Buger, Ch. J., not voting.  