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Ranken v. Probey

Supreme Court of New York, Appellate Division

March 10, 1909

RANKEN
v.
PROBEY.

Appeal from Trial Term, Rensselaer County.

Action by William Ranken against T. O. Probey, as president of the National Carriage Dealers' Protective Association. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

[115 N.Y.S. 833] The complaint in this action was dismissed at the opening of the trial upon the ground that it did not state facts sufficient to constitute a cause of action. The complaint was in form as follows:

" The plaintiff for his amended complaint against the defendant respectfully alleges and shows to the court:
" First. That the said National Carriage Dealers' Protective Association was at the times hereinafter mentioned, and ever since has been, an unincorporated association, consisting of more than seven members. That the object for which said association was organized was the protection and benefit and pecuniary profit of the retail carriage dealers throughout the United States. That the said association has upward of six hundred (600) members. That the said association is governed by a constitution and by-laws duly adopted by said association, under which constitution and by-laws the members of said association are required to pay as an initiation fee the sum of five ($5) dollars, and, in addition thereto, each member shall pay as his annual dues the sum of two ($2) dollars, payable in advance.
" Second. That the said T. O. Probey at the time of the commencement of this action was the duly elected president thereof.
" Third. That for many years prior to the 9th day of October, 1908, the plaintiff held the office of secretary of the said defendant, the National Carriage Dealers' Protective Association, discharging the duties and rendering the services appertaining thereto.
" Fourth. That the salary of the secretary of said association during the past several years has been and was duly and regularly fixed by the defendant association at fifty dollars ($50) per month.
" Fifth. That the said defendant association has failed and neglected to pay to this plaintiff his said salary at the rate of fifty ($50) dollars per month of the eight (8) months next preceding the 9th day of October, 1906, and the defendant association is now justly indebted to the plaintiff in the sum of four hundred ($400) dollars for such salary and services rendered by him as such secretary as aforesaid, no part of which has been paid, after demand made therefor.
" Sixth. That while acting and performing the duties of such secretary plaintiff incurred certain expenses incident to the conduct of his office as such secretary, to wit, the sum of one hundred ($100) dollars, pursuant to and by virtue of resolutions of said association heretofore duly passed and approved, authorizing the secretary of said association to incur expenses incident to his office, and to purchase such supplies as might be necessary in the conduct thereof, which sum is now justly due and owing the plaintiff by the defendant.
" Seventh. That this action is brought against the president of said association, the National Carriage Dealers' Protective Association, to recover the said salary of the plaintiff as secretary of said association, and the expenses incidental to the office of secretary thereof and incurred by him in the conduct of his office as such secretary, for and upon which claim the plaintiff might [115 N.Y.S. 834] have maintained such action against all of the members of the said association, either jointly or severally.
" That all of the members of said National Carriage Dealers' Protective Association are liable jointly and severally to pay the claim herein sued on.
" That the services rendered and the disbursements made by the plaintiff as secretary of the National Carriage Dealers' Protective Association as hereinbefore set forth, and which make up the claim herein sued on, were necessary for the preservation and the maintenance of the existence of the said association.
" Wherefore, plaintiff demands judgment against the defendant for the sum of five hundred ($500.00) dollars, with interest from the 9th day of October, 1906, ...

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