Hosman v. Kinneally

MacLeah, J.

Upon the return day, July 14, 1903, the parties herein appeared by counsel, and issue being joined the case was adjourned to August third following, and thereafter from time to time until Hovember 2, 1903, when the cause was tried. So runs the return, and at the trial the following: “ Defendant’s counsel: I wish to place on record my application for an adjournment of this trial which was made this morning, on account of the absence of Daniel De Leon, a material witness, who is out of the city, and by whose testimony the defendant desires to prove a release,’for valuable consideration, of the alleged claim on the part of the plaintiff. The court: The motion for an adjournment is denied. Exception. Defendant’s counsel: Without his testimony we claim we cannot safely go to trial.” It is now urged that the refusal of the trial justice to adjourn the trial was such an abuse of discretion as to call for reversal of the judgment.

But, as it does not appear that the witness had been subpoenaed, or that any effort otherwise had been made to procure his attendance, the application was properly denied. Keller v. Feldman, 29 Abb. N. C. 426, 432.

Suing the defendant as treasurer of the Socialist Labor party, to recover a balance for services alleged to have been performed upon “ The Daily People,” a paper published by that party, an unincorporated association, consisting of more than seven members, the plaintiff called as witness its national secretary, who testified, upon the direct, that one Hugo Vogt was the general manager of the paper, but, upon cross-examination, that the national convention had provided that the board of trustees, consisting of Peter Fiebiger, Hugo Vogt and Joseph H. Sauter, should have the management, and that Vogt was employed by the board. The plaintiff then testified to his employment by Vogt and to the terms. But the plaintiff 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. This, therefore, is the test to be applied in the present case. McCabe v. Goodfellow, 133 N. Y. 89, 92. While the nature of the association does not appear from the record, it may be recognized as a political organization, distinct from associations formed for the purpose of pecuniary profit, and hence it is quite unlikely that its members ever intended the transaction of business upon their individual credit. “ The individual liability of the members for contracts made by the association or its officers or committees depends upon the application of the principle of the law of agency, and authority to create such liability will not be presumed or implied from the existence of a general power to attend to or transact the business, or promote the objects for which the association was formed, except where the debt contracted is necessary for its preservation.” McCabe v. Goodfellow, supra, 95.

As the plaintiff failed to establish the individual liability of the members for the debt, the judgment rendered in his favor was improper and should be reversed and a new trial granted, with costs to abide the event.

Freedmatt, P. J., and Davis, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.