William McMahon et al., Appellants, v. George Rauhr et al., Respondents

William McMahon et al., Appellants, v. George Rauhr et al., Respondents. A member of a voluntary unincorporated association for pleasure -purposes, cannot maintain an action in his own name upon a contract made with the association, nor has he an interest therein, which he can so transfer that his assignee can maintain an action against the contractor with the association; nor can one member maintain an action at law, in behalf of the association, against another member upon any agreement made with the association. Under the provisions of section 352 of the Code, the General Term of the Common Pleas of the city of New York has no jurisdiction to review, upon appeal, a judgment of affirmance by default of the General Term of the Marine Court. The appeal in that section prescribed, is only from an “ actual determination.” A judgment of affirmance by default, is not an actual determination. Jurisdiction cannot be conferred upon an appellate court by consent or stipulation of the parties. When an inferior court has rendered a judgment without jurisdiction, the appellate court may so far act as to reverse the judgment for the want of jurisdiction. (Argued December 12, 1871; decided December 19, 1871.) Appeal from judgment of the General Term of the Court of Common Pleas of the city of Hew York, reversing a judgment of the General Term of the Marine Court of the city of Hew York, which affirmed by default, a judgment of the trial term of said court, entered upon a verdict. (Reported below, 1 Daly, 523.) The plaintiffs and their assignors, together with the defendants herein, were members of an unincorporated association, known as the “ Mutual Pleasure Club,” a voluntary association for mutual recreation in boating and yachting. The club contracted with the defendant, Rauhr, who was its commodore, for a pleasure boat, which Rauhr agreed to build for $1,000. The boat was built, and $500 paid by the club to Rauhr on account thereof. After the boat was launched it was found defective, and Rauhr, on being informed of this, agreed to build the club a new boat. He did not build the new boat. This action was brought in the Marine Court of the city of Hew York, to recover back the $500, in the names of the present plaintiffs, as members of the club, and as assignees of all its other members, except the four defendants, Rauhr, McGrady, Richardson and Haviland, the last three of whom were made defendants because they refused to join in the assignment to the plaintiffs, or in the suit as plaintiffs. The defendant, in his answer and on the tidal, objected that the action could not be maintained by the plaintiffs against the defendant, Rauhr, on the ground that the defendant was equally interested in the subject-matter of the action with the plaintiffs and their assignors, and was their copartner in respeet to said subject-matter, and that the defendants McGrady, Richardson and Haviland, should have been joined as plaintiffs in the action. The court overruled the objection, and on the conclusion of the trial the jury, under the charge of the court, found a verdict for the plaintiffs, against the defendants, for $500, the entire amount paid by the club to Rauhr; and this verdict was affirmed by default in the Marine Court, General Term; and the defendant, Rauhr, appealed to the Hew York Common Pleas, General Term, where the judgment was reversed. D. McMahon for appellants. The decision of the Marine Court, General Term, appealed from, was a judgment by default. It was not, therefore, an “actual determination.” (Howe v. Julien, 2 Hilt., 453; Harper v. Hall, 1 Daly, 498; Wavel v. Wiley, 24 N. Y. R., 635; Mitchell v. Merhle, 1 Hilt., 142.) The order of the General Term of the Marine Court was proper. (Malcolm v. Bayard, 1 John., 316; Mitchell v. Merkle, 1 Hilt., 142, observations of Ingraham, J.; Robinson v. Hudson R. R. R., 3 Abbott’s Pr. R., 115; Connolly v. Connolly, 16 How. Pr. R., 224.) Plaintiffs could maintain action. (Cole v. Reynolds, 18 N. Y., 74; 4 E. P. Smith; Townsend v. Galwey, 19 Wend., 424; Brownson v. Gifford, 8 How. Pr., 389.) The assignment was sufficient. (Durgin v. Ireland, 14 N. Y. R., p. 322; 4 Kern.; Burnett v. Gwynne, 2 Abb., p. 79.) The question as to whether this action should have been brought in the name of the president or treasurer of the club does not arise. (Masterson v. Botts, 4 Abb. Pr. R., p. 130; Tibbetts v. Blood, 21 Barb., 650.) It was proper to bring the action in the name of all the associates. ( Wells v. Gates, 18 Barb., 554; Code, § 119.) JD. McAdam for respondent. It is an answer to an action that a party is legally interested on each side of the question. (1 Chitty on Pleading, p. 40, 13th Am. ed.; Holmes v. Higgins, 1 Barn. & Cress., 74; Moffat v. Van Mullingen, 2 Chitty R., 589 ; Rosanquet v. Wray, 6 Taunt., 597; Trustees of the Meth. Epis. Church v. Stewart, 27 Barb., 554; Cary v. Williams, 1 Duer, 667.) Partners of an unincorporated association cannot maintain an action at law against each other in respect to partnership property or transactions. (Bailey v. Bancker, 3 Hill, 188, and authorities there cited; 27 Barb., 554; Eng. Com. Law, vol. 14, page 192; Milburn v. Codd, 7 B. & C., 419.) Besides being an action at law, it was commenced in a court of inferior and limited jurisdiction, (Ford v. Babcock, 1 Den., 158; Huff v. Knapp, 1 Seld., 65 ; 6 Hill, 590; 29 How., 292.) The assignment to plaintiffs conferred no cause of action. ( White v. Brownell, 4 Abb. Pr. R., N. S., 190, 191; St. James Club, 13 Eng. Law and Eq. Rep., 592; Medland Counties Guardian Society in Caldicott v. Griffith, 8 Exch’r Rep., 898.) The suit was not brought for or on behalf of the club. (Tibbetts v. Blood, 21 Barb., 650; 11 Abb., 459; 4 Duer, 362.) [MAJORITY — Folger, J.] Folger, J. The parties to this action are members with, other persons of a voluntary association not incorporated. The object of the association is innocent pleasure, and not trade business adventure or profit. It is not strictly a copartnership, for it does not in its objects fall within the definition of one. (3 Kent, 23; Collyer, 263.) But the rights of the associates in the property, and the modes of enforcing them are not materially different from those of partners in the partnership property. (Beaumont v. Meredith, 3 Vesey & Beames, 180.) Prima facie the interest of each associate in the property and effects of the association is equal or proportionate. Ho associate has an interest therein which can be separated and taken out of the whole for his sole use, until the joint affairs are settled, the association dissolved, the mutual rights of the members adjusted, and the ultimate share of each determined. It follows then that in any agreement made by a contracting party with the association as such, and in any right of action arising thereon, each associate has an interest, but no associate has an interest which he can so transfer, as that an action can be maintained by his assignee in his own name against the contractor with the association. The agreement and.the right of action upon it, and the result of an action are the property of the association as such, and there is no separate ownership by an individual associate, save in the residuum after the liabilities of the association are discharged. The right of action claimed in this case was upon an express agreement of the defendant Rauhr, with the association as a body. The plaintiffs claimed to have the right of action, as original owners of four interests therein; and as the assignees of others of the associates, of whom the defendant Rauhr was not one. The association did not as a body, through any officers or agents thereto authorized, assign and transfer to the plaintiffs, nor did all associates as individuals assign and transfer. The four interests which the plaintiffs owned, and the greater number which were assigned to them, were not so many parts of the agreement and right of action upon it, nor of the results of the action. All which they owned, and all that which they got by the assignment was something indefinite and unascertained, and not to be ascertained until the affairs of their association was closed. It was nothing which they could enforce as plaintiffs in an action on this agreement against the defendant Rauhr. It is evident then, that the plaintiffs had no right of action which they could enforce in their own behalf against the defendant Rauhr. ÍTor can the judgment be upheld as one in ait action to enforce, in behalf of the association against Rauhr, the agreement made with it by him. Such an action cannot be maintained in a court not of jurisdiction in equity. For no number of members short of the whole, can sue on a cause of action belonging to it. (Habict v. Pemberton, 4 Sandf., S. C., 658.) Still less can they at law sue another member. The defendant Rauhr has as great an interest in the subject-matter as any other of the associates. On this theory of the action, he is one of those in whose behalf it is brought. And yet it is brought against him, and the judgment is against him, and in favor of four in their own right. The judgment is erroneous. The nonsuit should have been granted on the ground stated in the motion therefor, that the defendant Rauhr was equally interested in the subject-matter with the plaintiffs. A court of equitable jurisdiction with all the parties before it might have granted appropriate relief. But the Marine Court had not that jurisdiction. But there is another question in the case. It appeal’s from the papers, that on appeal to the General Term of the Marine Court, the. judgment of the trial court was affirmed by default. The appeal from the General Term of the Marine Court is to the General Term of the Common Pleas. (Code, § 352.) But the appeal in that section prescribed, is only from an actual determination of the General Term of the Marine Court. (Id.) A judgment of affirmance by default, however, is not an actual determination. (Colden v. Knickerbocker, 2 Cowen, 31; Maltby v. Greene, 1 Keyes, 548; Harper v. Hall, 1 Daly, 498.) The General Term of the Common Pleas in reversing the judgment acted without having jurisdiction. It is true that the parties stipulated that the cause be argued on appeal on the merits; both sides waiving all objections not involving the merits of the cause. But this could not confer jurisdiction. Consent cannot give jurisdiction to an appellate court. (Henry v. Cuyler, 17 J. R., 469, cited with approval, Campbell v. Stakes, 2 Wend., 146; Dudley v. Mayhew, 3 N. Y., 9; The People ex rel. v. The Clerk, etc., Ct. of App., 3 Abbott Pr. Rep., 309.) Where an inferior court has acted without having jurisdiction and has rendered judgment, the appellate court which has power to review its decisions, may so far act upon the judgment as to reverse it for that want of jurisdiction. (Kundolf v. Thalheimer, 2 Kernan, 593.) The judgment of the Common Pleas must therefore be reversed. This will leave the parties in the situation in which they were when the judgment of affirmance by default was given by the General Term of the Marine Court. The defendant Rauhr, .in the action can make such motion in that court as he is advised, to relieve himself from that default. The judgment appealed from should be reversed with the costs of this court to the appellant. Church, Ch. J., Allen and Grover, JJ., concur; Peck-ham, J., concurs in result; Rapallo, J., dissents from so much as reverses for the "want of jurisdiction in the General Term of Common Pleas. Judgment reversed.