
    Hudson v. Spaulding et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    July 20, 1889.)
    1. Associations—Actions against.
    Code Civil Proc. N. Y. § 1919, permits an action against a voluntary association, having a president and treasurer, to be brought against those officers as such. Section 1933 expressly provides that the other provisions of the article (which includes section 1919) shall not prevent an action being brought against all the members of an association, except where an action has already been brought against the president or treasurer. Held, that an action may be brought, in the first instance, against all the members.
    2. Same—Failure to Form Corporation—Liability as Partners.
    Defendants and others signed a subscription paper preliminary to incorporation of a base-ball company. Subsequently a meeting was held, and a president, secre-
    
      tory, and five directors were chosen. It was also resolved that no further steps towards incorporation should be taken, and that the money subscribed should be paid to the directors, who were to have the sole management of matters, and that when the money so subscribed should be spent no more should be called for. One H., who was one of the subscribers, was present at the meeting, and he afterwards furnished board to some of the ball players, the claim for which he assigned to plaintiff. There was evidence that some of the defendants, including H., expressly agreed that their liability, in any matter connected with the club, should not extend beyond the amounts they had subscribed. Held, that the failure to form a corporation did not make the subscribers a partnership, as between themselves, and that plaintiff could assert no rights against defendants which H., as one of their number, could not have asserted.
    S. Same—Liability of Dieectoes.
    Though defendants R. and IT. were appointed two of the directors, and acted as such, and R. participated in contracting with S. to board the players, they did not thereby become liable to him or his assignee as partners.
    Appeal from judgment on report of referee.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      John W. Church, for appellants. Henry D. Waters, for respondent.
   Merwin, J.

This action is brought against a large number of defendants upon the theory that they were the members of a joint-stock association organized in the spring of 1886 for the purpose of carrying on the business of base-ball playing. One of their number, Samuel Hodge, in the summer of 1886, at the request, as it is claimed by plaintiff, of the directors of the association, furnished board to two of the employés of the association to the amount of $110.57, of which $24 was paid in June, 1886, and the balance of the claim was assigned by Hodge to plaintiff on September 1,1887. Soon after that this action was commenced; only six of the defendants being served with process. Those are Prank W. Rogers, Harrison Clark, George W. Nagle, W. Porter Chapman, David B. Pitch, and Andrew J. Phelps. They all answered, and the case was referred to a referee, who found that board had been furnished as alleged, and that the defendants were copartners, and ordered judgment accordingly. Judgment was entered against all the defendants, but to be enforced only against the joint property of all the defendants and the separate property of the defendants served. The defendants served appeal. The referee found that the association had a president and treasurer. It was therefore within the provision of section 1919 of the Code, which permitted an action to be brought against the president or treasurer as such. No such action had ever been commenced by the plaintiff. The referee held that it was not necessary in order to the maintenance of the present action. In this it is claimed by the defendants that the referee erred, and the case of Flagg v. Swift, 25 Hun, 624, is cited as in point. In that case it was held that an action must first be brought against the president or treasurer. That was so under the act of 1849, c. 258, as amended by chapter 153 of 1853. But these acts were repealed in 1880, and now section 1923 of the Code1 applies, which expressly provides that the other provisions of the article (which would include section 1919) should not prevent an action being brought against all the members of an association, except in a case where an action had already been brought against the president or treasurer. The provisions of section 1923 were not considered in the Flagg Case. We think it was not necessary to first bring an action against the president or treasurer. Humbert v. Abeel, 7 Civil Proc. R. 417.

It is further claimed by the defendants that, if the defendants were partners as found by the referee, then this action is not maintainable upon the ground that a law action cannot be brought by one partner or his assignee on a claim the partner had against the firm. The case of McMahan v. Rauhr, 47 N. Y. 68, is claimed to be in point, and it seems to be that way, and the same principle is recognized in Arnold v. Arnold, 90 N. Y. 583. There are some exceptions to the rule, but it seems to be at least doubtful whether the plaintiff has brought himself within any recognized exception. But aside from this there is a view of the case that looks to be somewhat serious for the position of the plaintiff. It seems that in the fall of 1885 a paper called a '“subscription paper” was prepared, and at that time, or in the spring of 1886, was signed by divers parties, among others by the defendants Rogers, Nagle, and Chapman. There is no evidence showing that the defendants Clark, Fitch, and Phelps signed this paper, except certain admissions hereinafter referred to. The heading of this paper was as follows: “ We, the undersigned, ■citizens of the United States and of the state of New York, being desirous of associating ourselves for athletic and batting purposes, under chapter 368 of the Laws of the state of New York, passed in 1865, and the various acts supplementary thereto and amendatory thereof, do so associate ourselves under the name and style of the ‘Norwich Base-Ball Association,’ of Norwich, N. Y., for the object and purpose of playing the game commonly called 1 baseball,’ with five trustees or managers to manage the same, and the following persons shall be such trustees or managers for the first year of its existence: * * * The capital stock of the association shall be $1,000, divided into 100 shares of $10 each; and for the said purpose, and in consideration of the same, and of our mutual subscriptions, we, the undersigned, do hereby take and subscribe for the number of shares in said stock set opposite to our respective names, and agree to pay therefor at the times and in the amounts that may be determined upon by the said trustees, no subscriptions to be binding unless the entire amount is raised. Dated Norwich, N. Y., Oct. 24, 1885.”

It will be observed that the names of the trustees or managers for the first year were not stated. In the spring of 1886 there was a meeting, purporting to be of the association. No record was kept of this meeting, and no written •evidence of the action then taken. Upon motion, a president and a secretary and treasurer were elected, and also five directors. A committee was appointed to get in the subscriptions, and the directors were authorized to draw a constitution and by-laws, and select a manager, who would engage players. It also appears from the testimony of the president, Mr. Church, which is not denied, that at this meeting the subject of incorporation was discussed, and a motion was made and carried that nothing further be done towards incorporating, and that the money which had been subscribed should be paid over to the directors, who were to have the sole management of matters, and that when the money had been spent they should stop, and that no money should be called for, except such as should be subscribed. At this meeting the defendants Rogers and Nagle were present, and were named two of the directors. The other defendants defending were not present. Samuel Hodge was present. No constitution or by-laws were prepared, and no corporation was formed. The parties to whom Hodge furnished board were afterwards engaged as players by the directors, or some of them, and games were played during the season of 1886, fees for admission being charged. There is no evidence that the defendants Clark, Chapman, Fitch, or Phelps participated in the business, or had anything to do with Hodge, in the matter of board. There are in the case admissions from the defendants to the effect that they subscribed in different amounts, to the sum of about $1,000, for the purpose of maintaining a ball club, which sum was paid to five of their number, termed directors, upon the express understanding and agreement that said sum was to be all that the subscribers, or any of them, should pay, or become liable to pay, in consequence of the club, or any matter connected therewith; of which understanding and agreement Hodge, plaintiff’s assignor, had knowledge, and was a party thereto before furnishing the board in question.

If the plaintiff relies on this admission, he must take it all together. Under it, as a whole, the subscribers would not be liable as partners. The subscriptions being paid, that ended the matter as between themselves, and Hodge would be bound by the limitation imposed by the agreement. ■ The plaintiff, as assignee of Hodge, has no better position. The transfer was in 1887, and for a precedent debt. Hodge could transfer no better right than he had. Aside from admissions, the plaintiff has shown no basis for a claim against the defendants Clark, Fitch, and Phelps; for they are not shown to have signed the subscription paper, or attended the meeting in spring of 1886. As to Chapman, he signed, but did not attend the meeting. The subscription paper, upon its face, indicated an intention to form a corporation. The failure to do that did not result in a partnership. That depended on what afterwards occurred. In Bank v. Walker, 66 N. Y. 424, it was held that,-to establish a liability against a party as a partner for the acts of others, it must be made to appear that a copartnership was formed by express agreement, or that there was an authorization in advance, and a consent to be bound by such acts as a partner, or a ratification of the acts after performance with full knowledge of all the circumstances, or some act by which an equitable estoppel has been created.' In Fay v. Noble, 7 Cush. 188, it was held that subscribers for and holders of stock in a corporation which was defectively organized, and its proceedings void, did not thereby become partners. The same was held in Bank v. Padgett, 69 Ga. 159. See 2 Mor. Priv. Corp. (2d Ed.) § 748. There was certainly no agreement by Chapman to become a partner, or any ratification by him of any acts of others that would produce that result or any basis for ah estoppel.

The defendants Rogers and Nagle signed the subscription paper, were present at the meeting, and became two of the directors, and acted as such. Did they thereby become liable to Hodge or his assignee as partners? It must be borne in mind that the question is not whether Rogers and Nagle, by reason of what they may have done as directors, became individually liable for the debt. The complaint in the action is not on that basis, nor was the case tried or decided on that theory. There is evidence tending to.show that Roger» participated in the hiring of Hodge to board the employés. This Rogers denies, and the referee does not find specifically on the subject. It does not appear to what extent Nagle acted. As the case stands, it cannot here be determined whether Rogers and Nagle are liable to plaintiff on some other basis than that of partnership. Nor is it the question here whether, as to third parties, who had a right to act from appearances, there would be deemed L> be a partnership; for the plaintiff, as assignee of Hodge, takes only his rights. But the question is whether the parties who engaged in the meeting in the spring of 1886 formed, as between themselves, a partnership. There was no' agreement to that effect. The subscription paper under which they assumed to act contemplated no such result. Presumptively no greater liability was designed than such as would have been involved, had the idea of incorporation been carried out. Take the most favorable view of the meeting, it is a little difficult to see how there was any design to form, as between themselves, a partnership. A fund was expected from the collection of subscriptions. Its management was intrusted to the five persons called “directors.” It cannot fairly be said that power was designed to be conferred upon them to bind the associates individually. The evidence does not'warrant that conclusion. If the evidence of Mr. Church, the president, is taken,—and it stands uncontradicted, and is not improbable,—there was an express limitation, to the knowledge of Hodge, upon the power of the directors. Nothing occurred at the meeting indicating that any profits were expected. We think the evidence is not sufficient to warrant the conclusion that the parties at that meeting, as between themselves, formed a partnership. If not, there is no basis for the claim as presented by the complaint, and the motion for a nonsuit made by the defendants at the close of the trial should have been granted. The foregoing considerations lead to a reversal of the judgment. Judgment reversed on the exceptions, and new trial ordered before another referee, cost» to abide the event. All concur.  