Tibbetts v. Blood & Tubbs , 21 Barb. 650 ( 1856 )

By the Court, Marvin, J.

The principal objection made by the defendants is that the note is the property of seven or more persons, and that they should have brought the action in their names, as plaintiffs; that the action cannot be brought in the name of Tibbetts as treasurer. This position is -undoubtedly correct, unless the statute of 1851, chap. 455, applies to the case. The plaintiff’s counsel insists that the statute does apply, and does not claim that the action can be maintained upon any other ground. Let us proceed at once to an examination of the statute. It is an act to extend the “ act in relation to suits by and against joint stock companies and associations” to companies having a joint or common interest in property. The act thus extended is chap. 258 of the session laws of 1849. And by the first section of that act it is enacted that “any joint stock company or association, consisting of seven or more shareholders, or associates, may sue and be sued in the' name of the president or treasurer for the time being, of such joint stock company or association. The effect of the suit is to be the same as though it was prosecuted in the names of all the shareholders or associates. The act of 1851 declares that the act of 1849 is thereby extended to any company or association composed of not less than seven persons, who are owners of, or have an interest in, any property, right of action or demand, jointly or in common, &c.; and that the action may be brought and maintained in the manner provided in that act.

It is clear, to my mind, that the act of 1849 does not include this case. The “ Forestville Division No. 411, Sons of Temperance,” is not a joint stock company or association, within the meaning of that act. It will not be necessary to inquire to what uses, in this state, that act. may be applied. The act of 1851 is far more comprehensive. It applies to any company or association composed of not less than seven persons who are owners of, or have an interest in, any property, right of action, or demand, jointly or in common, &c.

It is alleged substantially, in the complaint, that the “ Forestville Division No, 411, Sons of Temperance,” is an association composed of seven persons and upwards; that the note was given for the benefit of the association ; that it is the property of the members of the association and owned by them in common. Tibbetts, in whose name the action is brought, is the treasurer of the association. In my opinion the statement authorizes the action to be brought in his name. The statute does not designate the kind of company or association, or characterize it in any manner, so as to show or indicate that it was formed for any purpose of business. All that the statute requires is that the persons composing the company or association shall be owners of, or have an interest in, any property, right of action or demand, jointly or in common, &c. Associations may be and are formed for business purposes. They may be, and often are, formed for social purposes ; and if the members organizing the association are seven or more in number, and they have a treasurer, and property, or rights of action, or demand, owned by thejn jointly or in common, they may bring their action in the name of their treasurer. It is not necessary that they should be partners. Nor is it necessary, now, to say whether the act will apply to ordinary commercial partnerships. They may be joint tenants or tenants in common of the property or right. If they have become an association, and have a treasurer, they may bring their action in his name. Wells & Webb v. Gates, (18 Barb. 554,) and Nash v. Russell, (5 id. 554,) are not applicable to the present case.

It does not appear that the defendants are, or ever were, mejpbers of the association; nor does the consideration of the note appear. The presumption is that it was given upon a sufficient consideration.

It is insisted by the defendants’ counsel that the complaint should state the names of at least seven of the associates. There is nothing in the statute requiring this. It is averred that the association consists of seven associates, and upwards. This I think sufficient. The defendants can put this averment in issue, if they wish to controvert it.

[Erie General Term, May 12, 1856.

I think the order of the special term should be affirmed.

Marvin, Greene and Bowen, Justices.]