L. 1920, ch. 915. Unincorporated associations; actions. § 14, 15. ment was forfeiture of membership. In an action by an assignee of a deceased member against the president of the association to recover the death benefit solely upon the theory of a contractual obligation created by the constitution and bylaws, the defendant pleaded a general denial, and alleged as a defense that the association had been dissolved and had gone out of existence. It was held, that since there was no contractual obligation on the part of the members either jointly or severally to the beneficiaries of deceased members, no recovery can be had and that the complaint should be dismissed. Doscher v. Vanderbilt (1917), 177 App. Div. 813, 164 N. Y. Supp. 264. Where a fraternal benefit association, unincorporated, has its principal office in England, and has a United States branch with a local president, the plaintiff, in order to obtain a judgment against the society itself, should bring the action against the foreign president or treasurer, though, if the plaintiff claims that the members of the United States branch are liable for the full amount, the action may be brought against the local president. Stewart v. Thorburn (1916), 171 App. Div. 258, 157 N. Y. Supp. 242. Complaint.-Where the complaint in an action against the president of an unincorporated association consisting of more than seven members does not allege that all the members are jointly or severally liable for the claim, an answer which admits that the association is unincorporated, consists of more than seven members, and is indebted for part of the claim, does not admit that the members are jointly or severally liable so as to entitle the plaintiff to judgment. Ranken v. Probey (1909), 136 App. Div. 134, 120 N. Y. Supp. 413. In an action against an unincorporated association upon a contract between it and its secretary an allegation of the complaint that defendant was organized for "pecuniary profit" is sufficient to authorize proof of such purpose. Ranken v. Probey (1909), 131 App. Div. 328, 115 N. Y. Supp. 832. Parties. The president of an unincorporated association and the members thereof, charged with personal wrongdoing, may be joined as parties defendant. April v. Baird (1898), 32 App. Div. 226, 52 N. Y. Supp. 973. Labor unions, being voluntary associations, may properly be made parties by service upon their officers. Russell & Sons v. Stampers & G. L. L. U. No. 22 (1907), 57 Misc. 96, 99, 107 N. Y. Supp. 303. Section cited.-Auburn Draying Co. v. Wardell (1919), 227 N. Y. 1, 124 N. E. 97. § 14. When action not to abate. The death or legal incapacity of a member of the association does not affect an action or special proceeding, brought as prescribed in the last two sections. If the officer, by or against whom it is brought, dies, is removed, resigns, or becomes otherwise incapacitated, during the pendency thereof, the court must make an order, directing it to be continued by or against his successor in office, or any other officer, by or against whom it might have been originally commenced. (Added by L. 1920, ch. 915, in effect Apr. 15, 1921.) Source.-Code Civ. Pro., § 1920, without change. § 15. Effect of judgment; execution thereupon.-In such an action, the officer against whom it is brought cannot be arrested; and a judgment against him does not authorize an execution to be issued against his property, or his person; nor does the docketing thereof bind his real property, or chattels real. Where such a judgment is for a sum of money, an execu § 16. Unincorporated associations; actions. L. 1920, ch. 915. tion issued thereupon must require the sheriff to satisfy the same, out of any personal or real property belonging to the association, or owned, jointly or in common, by all the members thereof. (Added by L. 1920, ch. 915, in effect Apr. 15, 1921.) Source.-Code Civ. Pro., § 1921, without change. The judgment cannot go against the president or treasurer as such; it can only bind the joint property of the association, and not the individual property of the officer sued. National Bank v. Vanderworker (1878), 74 N. Y. 234; Duncan v. Jones (1884), 32 Hun 12. Attachment cannot be issued against the property of the president of an association; it can only reach the property belonging to the association or owned jointly or in common by all the members thereof; it was further held that the law does not provide for an attachment against unincorporated associations. Mertz v. Fenouillet (1897), 13 App. Div. 222, 43 N. Y. Supp. 217. § 16. Subséquent action against members.-Where an action has been brought against an officer, or a counterclaim has been made, in an action brought by an officer, as prescribed in this article, another action, for the same cause, shall not be brought against the members of the association, or any of them, until after final judgment in the first action, and the return, wholly or partly unsatisfied or unexecuted, of an execution issued thereupon. After such a return, the party in whose favor the execution was issued, may maintain an action, as follows: 1. Where he was the plaintiff, or a defendant recovering upon a counterclaim, he may maintain an action against the members of the association, or, in a proper case, against any of them, as if the first action had not been brought, or the counterclaim had not been made, as the case requires; and he may recover therein, as part of his damages, the costs of the first action, or so much thereof, as the sum, collected by virtue of the execution, was insufficient to satisfy. 2. Where he was a defendant, and the case is not within subdivision first of this section, he may maintain an action, to recover the sum remaining uncollected, against the persons who composed the association, when the action against him was commenced, or the survivors of them. But this section does not affect the right of the person, in whose favor the judgment in the first action was rendered, to enforce a bond or undertaking, given in the course of the proceedings therein. Section eleven of this chapter applies to an action brought, as prescribed in this section. against the members of any association, which keeps a book for the entry of changes in the membership of the association, or the ownership of its property; and to each book so kept. (Added by L. 1920, ch. 915, in effect Apr. 15, 1921.) Source.-Code Civ. Pro., §§ 1922, 1924, without change. In general.-Action not maintainable against members until return of execution unsatised wholly or in part, upon a judgment against the officer. McCabe v. Goodfellow (1892), 133 N. Y. 89, 30 N. E. 728. The legislative intent under this section L. 1920, ch. 915. Unincorporated associations; actions. § 17. is to preserve the individual liability of members of unincorporated associations. People ex rel. Winchester v. Coleman (1892), 133 N. Y. 276, 286, 31 N. E. 96. Where a judgment has been recovered against a defendant in a representative capacity, as attorney in fact for several individuals as underwriters, it seems that the remedy of a judgment creditor is to bring an action against the individual underwriters pursuant to this section. Matter of Kriegman v. Dumphy (1910), 66 Misc. 221, 122 N. Y. Supp. 1116. The section only applies to the liability of members of the association as such, and an action may therefore be maintained against both the officers and the individual members to recover damages for a conspiracy, where the individual defendants are charged with personal wrongdoing. April v. Baird (1898), 32 App. Div. 226, 52 N. Y. Supp. 973. But where the causes of action is a debt owing by the association, suit must first be brought against the officer so as to reach the property of the association before an action can be brought against the individual members. Flagg v. Swift (1881), 25 Hun 623. An action cannot be brought against the members upon a judgment obtained against the association. Witherhead v. Allen, 3 Keyes 562, 4 Abb. Ct. of App. Dec. 628. § 17. Article permissive; effect upon statute of limitations.-This article does not prevent an action from being brought by or against all the members of an association, except as prescribed in the last section. Where an action is brought against the members of the association, as prescribed in subdivision first of the last section, the time between the commencement of the action by or against the officer, and the return of the first execution issued upon the final judgment rendered therein, is not a part of the time limited by law, for the commencement of the second action. (Added by L. 1920, ch. 915, in effect Apr. 15, 1921.) Source.-Code Civ. Pro., § 1923, without change. In general. An action may be brought in the first instance against the members. Schwartz v. Weckler (1892), 2 Misc. 67, 20 N. Y. Supp. 861, 29 Abb. N. C. 332; Humbert v. Abeel, 7 Civ. Pro. Rep. 417. Compare Flagg v. Swift (1881), 25 Hun 623. The latter case was decided under the statute as it existed prior to the enactment of the Code; the Code changed the rule by authorizing a suit against the members of the association in the first instance. Art. 3 renumbered Art. 4 by L. 1920, ch. 915. §§ 11-29-a. Weights and measures; private banking. L. 1920, ch. 874. GENERAL BUSINESS LAW. (L. 1909, ch. 25.) § 11. Duties of state superintendent of weights and measures. A regulation by the State Superintendent of Weights and Measures to the effect that all scales of a certain kind must be equipped with automatic devices resulting in injury to the business of the manufacturer of the scales specified but not equipped with such devices, not being a rule or regulation of a legislative character, does not impair such manufacturer's constitutional rights under the 14th amendment, or the commerce clause of the Federal Constitution. Standard Scales Co. v. Farrell (1919), 249 U. S. 571. § 13. County sealer; duties of county sealer; duty of supervisors. Residence; jurisdiction.-A county sealer of weights and measures should be a resident of that part of the county not included within a city, his jurisdiction not extending therein. Opinion of Attorney General (1919), 20 State Dep. Rep. 220. § 16. Method of sale of commodities.-All meat, meat products and butter shall be sold or offered for sale by net weight; all other commodities not in containers shall be sold or offered for sale by standard net weight, standard measure or numerical count; and such net weight, measure or count shall be marked on a label or a tag attached thereto; provided, however, that vegetables may be sold by the head or bunch. (Added by L. 1912, ch. 81, and amended by L. 1920, ch. 874, in effect Sept. 1, 1920.) § 20-a. General powers and duties of commissioner. Power of Commissioner of Foods and Markets to issue subpœna; limitation upon said power; dispute arising over sale of milk in foreign State-This section, which, among other things, empower the Commissioner of Foods and Markets to take the testimony of witnesses and for the exercise of his power to issue subpoenas, does not authorize said Commissioner to issue a subpœna in a matter entirely outside the scope of his duties. Thus, where dairymen located in a foreign State, who are under contract to deliver milk to a domestic corporation in this State to be tested by said corporation and paid for on the basis of the percentage of butter fat contained, complained to said Commissioner that the corporation had failed to make proper tests and had not paid for milk on an equitable basis, the Commissioner has no authority to subpoena an officer of the corporation to appear and give testimony and produce books and papers showing the purchase and sale of milk in the foreign State in an attempt to do justice to both parties. Doing justice between parties to a contract for the sale of milk in the State of Pennsylvania is not within any of the powers and duties vested in and imposed upon the Commissioner by the statute. Courts of law have been established for that purpose. Matter of Nicosia (1917), 180 App. Div. 427, 167 N. Y. Supp. 912. § 29-a. Private banking.-(Repealed by L 1914, ch. 369, §§ 500, 502.) L. 1920, ch. 775. Licenses to soldiers and sailors. $ 32. The repeal of section 29-a did not affect the liability of sureties on ticket agents' bonds or deprive them of any method by which they could be discharged. Opinion of Attorney General (1917), 13 State Dep. Rep. 438. § 32. Licenses to soldiers, sailors and marines.-Every honorably discharged soldier, sailor or marine of the military or naval service of the United States, who is a resident of this state and a veteran of either the civil war, the Spanish-American war or the world war, or who shall have served beyond sea, and the widow of any such veteran if she is a resident of the state, shall have the right to hawk, peddle, vend and sell by auction his own goods, wares or merchandise or solicit trade within this state, by procuring a license for that purpose to be issued as herein provided. On the presentation to the clerk of any county in which any soldier, sailor or marine may reside of a certificate of honorable discharge from the army or navy of the United States, which discharge shall show that the person presenting it is a veteran of the civil war, the Spanish-American war or the world war, or that he has served beyond sea, or on presentation to such clerk by any such widow, of an affidavit of herself and two other residents of the county that she is such widow, accompanied by such certificate of honorable discharge of her deceased husband, such county clerk shall issue without cost to such soldier, sailor, marine or widow a license certifying him or her to be entitled to the benefits of this article. A license issued without cost, under the provisions of this section, shall be personal to the licensee, and any assignment or transfer thereof shall be absolutely void. A person assigning or transferring, or attempting to assign or transfer any such license contrary to the provisions of this section shall be guilty of a misdemeanor. (Amended by L. 1915, ch. 175 and L. 1919, chs. 42 and 272.) Construction of this section should be fair and liberal, and those soldiers, sailors and marines who have been discharged from active duty but kept on the reserve list, should be accorded the same rights and privileges in the granting of licenses under this section as those who have been finally discharged. Opinion of Attorney General (1919), 19 State Dep. Rep. 367. Honorably discharged soldiers and sailors holding licenses under this section are not required to take out additional licenses in each municipality in which they may desire to do business as hawkers or peddlers, but are required to comply with all reasonable regulations and ordinances of cities and villages within which they may be soliciting trade, but are not compelled to pay a license fee for such privilege. Opinion of Attorney General (1917), 11 State Dep. Rep. 562. ARTICLE IV-A. ENGINEERS AND SURVEYORS. (Art. added by L. 1920, ch. 775, in effect May 14, 1920.) Section 37. Engineers and surveyors to be licensed. 38. Appointment of board. |