
    Winslow Robinson et al., Resp’ts, v. Charles G. West et al., Impl’d, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    
      1. Clubs—Liability of trustees.
    Trustees of a club organized under chap. 368, Laws 1865, are liable in the first instance as contractors for debts contracted while they hold such office, and not by way of suretyship, and there is no necessity for a creditor to exhaust his remedy against the club before proceeding against the trustees.
    2. Same—Mechanic’s lien.
    The fact that the creditor has filed a mechanic’s lien and recovered judgment thereon is not'destructive of the claim against the trustees.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.
    Action to charge defendants as trustees of the Hoboken Turtle ■Club with a debt for work and material done and furnished in and about certain alterations in the club house and in building a pavilion on its grounds.
    
      James B. Dill, for app’lts; William M. Mullen, for resp’ts.
   Barnard, P. J.

The plaintiff did work for the Hoboken Turtle Club upon the club house at Larchmont Manor, N. Y. There was a contract with the club under which the work was done. The contract price was $3,076. The amount of the bill and the extra work done by the direction of the club officers is not seriously questioned. The defendants were the trustees of the club, and they deny their liability for the debt of the club.

The Hoboken Turtle Club was organized on the 29th of May, 1889, under chap. 368, Laws of 1865. By the seventh section of this act, the trustees are made jointly or severally liable for all debts contracted -while they are trustees, if the debts are payable within one year from the time when such debts were contracted, and if the suit be brought within one year after the debt became due. The case shows that the cost of the work was limited to $2,000 by a resolution of the governing board. There is proof tending to show that the trustees ratified the expenditure in excess of that amount. * The jury found the entire debt to be due. The work was done under the notice of the trustees and members of the club, and the trustees made payments on account of the debt and requested time in which to pay the residue. The finding is fully supported. The action is not for a penalty. The statute makes a direct obligation against the trustees and not as a penalty for not doing something required by law. The trustees contracted this debt in a legal sense themselves. Wiles v. Suydam, 64 N. Y., 173; Gadsden v. Woodward, 103 N. Y., 242; 3 St. Rep., 102.

There was no necessity imposed by the law upon the plaintiff to exhaust his remedy against the club. The trustees were liable in the first instance as contractors and not by way of suretyship.

The pleadings upon the part of the defendants did not set up the filing of a lien and judgment therein as a bar. Such a defense was not available if good. Hollister v. Stewart, 111 N. Y., 644; 20 St. Rep., 941.

The action to enforce the lien is not destructive of the claim against the trustees. The plaintiff can have both remedies with but one satisfaction.

The judgment and order denying a new trial should be affirmed, with costa

Dykman and Pratt, JJ., concur.  