Martin v. Curran , 303 N.Y. 276 ( 1951 )

Desmond, J.

By its certified question the Appellate Division has asked us to decide whether that court acted correctly in dismissing this complaint, for insufficiency, as against defendants-respondents Curran, Smith, Stone, Myers, McKenzie and Lawrenson, in their representative capacities as officers of the National Maritime Union. The suit, which is at law for damages on account of a libel.published in the union’s official newspaper, is, by the Appellate Division’s order, allowed to stand as against those same defendants, individuálly. The Appellate Division’s reason for dismissing it as to the officers as such, was that “ The allegations of the complaint are insufficient to show that the libel complained of was authorized or ratified by the members of the union, an unincorporated association ” (273 App. Div. 980), citing McCabe v. Goodfellow (133 N. Y. 89); Schouten v. Alpine (215 N. Y. 225) and Lightbourn v. Walsh (97 App. Div. 187). We agree that those cases, and many others, which apply section 13 of the New York General Associations Law, make impossible the maintenance of this action against these defendants as officers of the union, since there is in this complaint no allegation that the individual members of the union authorized or ratified the tort complained of.

The complaint does say that the newspaper is the union’s official organ, that it has a circulation of about 125,000 copies, that it is published to accomplish the union’s purposes by these defendants who have been constituted by the union as its editorial board, and that the defamatory articles concerning plaintiff were written by and under the directions of that board. Those averments, however, fall far short of asserting that the' union members themselves authorized or ratified the particular libels. Indeed, plaintiff does not claim that his complaint charges authorization or ratification. The Appellate Division gave plaintiff permission to serve an amended complaint to allege “ membership participation in the publication of the libel ” but no such amended pleading was forthcoming.

Much of appellant’s brief is given over to the policy argument that large associations like the National Maritime Union should be held accountable for defamations appearing in their widely circulated periodicals. The rule to be preferred, says appellant, is that of Pandolfo v. Bank of Benson (273 F. 48), which held such a group suable for libel. But such considerations of policy cannot be allowed to control our decision when, as here, we are under the command of a plainly stated, plainly applicable statute, uniformly held by this court, for many years, to require pleading and proof of authorization or ratification by all the members of the group.

A voluntary, unincorporated membership association is neither a partnership nor a corporation. It is not an artificial person, and has no existence independent of its members (Ostrom v. Greene, 161 N. Y. 353, 361; see Niven v. Spickerman & Stever, 12 Johns. 401). No agency of one member for another is implied (McCabe v. Goodfellow, 133 N. Y. 89, 95, supra). “ A part of the members of a voluntary organization cannot bind the others without their consent before the act which it is claimed binds them is done, or they, with full knowledge of the facts, ratify and adopt it ” (Sizer v. Daniels, 66 Barb. 426, 432-433). So, until the passage of the statutes which were the precursors of article 3 of the present General Associations Law, all the meim bers of such a group were necessary parties defendant in any suit on an alleged association liability, and could not be sued through their officers (Van Aernam v. Bleistein, 102 N. Y. 355, 358). The privilege of naming as defendants, and serving, the officers only, was first conferred by statutes in 1849 (ch. 258) and 1851 (ch. 455). That statutory authorization has found its way, through the old Code of Civil Procedure, into section 13 of our present General Associations Law, which provides that: “ An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section.”

That privilege was conferred by the Legislature on plaintiffs for their “ convenience ” (McCabe v. Goodfellow, supra, p. 92), and created no new substantive right or liability (see Tibbetts v. Blood, 21 Barb. 650; Corning v. Greene, 23 Barb. 33, affd. 26 N. Y. 472, n.). The liability to be enforced in any such suit, in which association officers are named as representative defendants, is still that of the individual members as individuals, and so the cause of action has to be one “ for or upon which the plaintiff may maintain such an action * * * against all the associates, by reason of their 6 * * liability therefor, either jointly or severally ” (General Associations Law, § 13). A plaintiff u cannot, in any case, maintain such an action against the officer, unless the debt, which he seeks to recover, is one upon which he could maintain an action against all the associates by reason of their liability therefor, either jointly or severally ” wrote this court in McCabe v. Goodfellow (p. 92), the leading case, and the line of consistent decisions to that effect has been unbroken from McCabe v. Goodfellow to Glauber v. Patof (294 N. Y. 583). The line includes not only contract but tort cases (Schouten v. Alpine, supra; People ex rel. Solomon v. Brotherhood of Painters, 218 N. Y. 115, 123; Havens v. King, 221 App. Div. 475, affd. sub nom. Havens v. Dodge, 250 N. Y. 617). Indeed, this court cited McCabe v. Goodfellow, a contract case, as its authority for holding, in one of those tort cases, that the claim had to be one ‘ ‘ for which an action might be maintained against the thirty thousand members of the United Association ” (Schouten v. Alpine, 215 N. Y. 225, 232, supra). And in Havens v. King (supra) the Appellate Division said that “ in the absence of bad faith the members of the association cannot be held liable in damages as joint tort feasors ” (p. 482, emphasis supplied).

So, for better or worse, wisely or otherwise, the Legislature has limited such suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven. Despite procedural changes, substantive liability in such cases is still, as it was at common law, “ that of the members severally ” (Sperry Products, Inc., v. Association of Amer. R. R., 132 F. 2d 408, 410, certiorari denied 319 U. S. 744). “ In the kind of association now under consideration, only those members are liable who expressly or impliedly with full knowledge authorize or ratify the specific acts in question ” (Wrightington on Unincorporated Associations and Business Trusts, § 64).

It may seem anomalous, but it is not otherwise important for our purposes, that under section 16 of the General Associations Law, this plaintiff, if he could serve a sufficient complaint against these officers and should thereafter get judgment but fail to collect it from the association’s funds, could bring another suit for the same tort against the members themselves, to reach their separate assets, “ as if the first action had not been brought ”. In other words, he would have to plead and prove, all over again, the members’ own liability (see Witherhead v. Allen, 3 Keyes 562). But, anomalous or not, such is the law, and this court does not revise statutes, in an effort to eliminate seeming injustices, or to bring the law into accord with modern fact. Whatever reasons be pressed on us for such changes, the power to change is not ours. It is for the Legislature to decide whether or not to overhaul these settled rules, after hearing both sides, and after considering the interests of the general public as well as those of the innumerable members of these associations.

Nothing in Kirkman v. Westchester Newspapers, Inc. (287 N. Y. 373) controls our decision here. There we were dealing with a libel suit brought, pursuant to section 12 of the General Associations Law, on behalf of union members, by their officers. Finding in the complaint allegations justifying the conclusion that the particular union’s reputation was “ the common property of its members as such ” (p. 380), we held that there was sufficient compliance with the requirements of section 12, that the cause of action be one upon which “ all the associates ” could sue “ by reason of their interest or ownership therein ”.

The other part of the question certified to us by the Appellate Division has to do with the striking from the complaint of paragraphs 13 and 15. That was a discretionary matter, and we see no abuse of discretion, so we cannot interfere.

The order should be affirmed, with costs, and the certified question answered in the affirmative.