McGLYEN v. POST

McGLYEN v. POST. N. y. Supreme Court, First District, Chambers; March, 1888. Association unincorporated; action to enjoin use of name.] An- actios lies on behalf of an unincorporated association (especially if it consists of seven or more members having joint property, and sues in the name of the president or treasurer under the statute*) to enjoin a part of its members from procuring the incorporation of & society under the name used by the association. * The provisions of the statute (Code Civ. Pro. § 1919), are as follows : “An action or special proceeding may be maintained by the president or treasurer of an unincorporated association, consisting of seven, or more persons, to recover any property, or upon any cause of action, for or upon which all the associates may maintain such an action okspecial proceeding, by reason of their interest or ownership therein., either jointly or in common. Motion to continue a temporary injunction. The facts are stated in the opinion. John Post, for the motion. Louis F. Post, opposed. [MAJORITY — Patterson, J.] Patterson, J. This action is brought by the- plaintíE as president of a voluntary association having a regular organization, a constitution, by-laws and a membership of two» thousand persons, to restrain certain of such members from procuring an incorporation of a society by the name ‘1 AntiPoverty Society,” that being the name under which the voluntary association has been known and has carried on its business and affairs since March, 1887. It appears in the moving paper’s that dissensions have arisen among the members of the voluntary association, and that a large number of its officers and members and its executive committee, as now constituted, are opposed to an incorporation being had. The defendant Post and those acting with him allege that their application for an incorporation was made pursuant to authority derived from a general meeting of the association, and that their purpose in applying was not to establish an independent society, but merely to incorporate the already existing voluntary association. Upon the question of authority there is a conflict of evidence which cannot be determined on the affidavits now before the court. The action is brought evidently to protect the name and preserve the organization of the unincorporated society, and it is claimed that such an action will lie under the general rules of law applicable to such associations, and particularly under section 1919 of the Code of Ci^il Procedure. By that section the president of such a society may maintain an action or special proceeding which all the associates might maintain by reason of their common interest or ownership. There is a doubt suggested as to a suit in equity being maintainable under this section by the president against some of the members—the defendants are still members, of the organization—but their proposed course would result in a dissolution of the society, and they claim the power to act as derived from the society itself. In view of the contest as to this question of authority, I' am of opinion that the preliminary injunction should be maintained until the trial of the issues. Ordered accordingly.