Spodick v. Cohen

Order entered on September 25,1959, dismissing the amended complaint as against defendants Frank Gold and Benjamin Berger unanimously reversed on the law, with $20 costs and disbursements to the appellant, and the motion denied, with $10 costs. The fourth cause of action in the amended complaint is directed against the defendants Gold and Berger. It was dismissed on the theory that these defendants would not be liable for the wrongful acts alleged because they acted in “ their official capacity” and therefore “No suit may be brought against them until a judgment [is] secured against the local”. However, it appears from the complaint that Gold and Berger are being charged with wrongs committed by them acting as individuals and not in their representative capacities. Paragraph Thirty-third of the complaint alleges that “the said individual defendants wrongfully misappropriated and converted the aforesaid monies for their own use and benefit ”. That is sufficient to hold them liable as individuals in conversion. This cause of action is sufficient as pleaded. Concur — Botein, P. J., Rabin, Valente, Eager and Bastow, JJ. [20 Misc 2d 497.]