Opinion
December 30, 1909.
Peck Behan [ John T. Norton of counsel], for the appellant.
H.P. Humphrey, for the respondent.
The first amended complaint in this action was dismissed at the trial upon the ground that it did not state facts sufficient to constitute a cause of action. The judgment on such dismissal was reversed by this court in 131 Appellate Division, 328, the court holding that the amended complaint foreshadowed that the association was organized for pecuniary profit, and if such facts were proved upon the trial the action could be maintained against the president of the association. Upon this trial the plaintiff failed to prove that the association was formed for the pecuniary profit of its members, and did not show that the members were jointly and severally liable for the indebtedness, as required by McCabe v. Goodfellow ( 133 N.Y. 89) and the former decision in this case. But a verdict was directed for the plaintiff upon the theory that an admission in the original answer was proof sufficient to establish those facts and to bring the case within the provisions of section 1919 of the Code of Civil Procedure.
To understand the admission in the answer we must read the complaint which it answered. It alleged that the National Carriage Dealers' Protective Association was an unincorporated association of more than seven members, and that the defendant is its president; that the plaintiff had performed services as secretary for the association at $50 a month, and that the defendant is justly indebted to him for his salary and services as such secretary in the sum of $400, which he had demanded and which had not been paid, and that while acting as secretary he had incurred certain expenses incident to the conduct of his office, for stamps, stationery, desk, stenographer and other office sundries to the amount of $100, which sum is justly due and owing plaintiff by defendant, and demanded judgment for $500 and interest. The answer admitted that the association was unincorporated and consisted of more than seven members; that the defendant was its president; that the plaintiff was secretary at $50 per month, and that the association is indebted to him in the sum of $400 for eight months' salary as such secretary, and denies knowledge or information sufficient to form a belief as to the other allegations of the complaint.
An admission of a fact in an original pleading does not lose its effect as an admission of fact because the pleading has been superseded as such by an amended pleading. It stands simply as an admission made by the party. But that does not help the plaintiff. The original complaint does not allege that the association was formed for pecuniary profit, and does not allege any liability existing against the members individually, and, therefore, giving it all the force which can be claimed it does not authorize the judgment. The original answer, however, was interposed by the defendant's attorney. The defendant had no knowledge of its contents, and the attorney upon the stand offered to show the facts and circumstances under which the admission was made, and that he made it merely as a matter of form without any information that the admission was true, but simply to raise a legal question which he felt must dispose of the case. The fact that the admission was made without the knowledge of the defendant weakens its force, and if the attorney who made it had been permitted to explain the circumstances and reasons therefor it might have destroyed its force as evidence to prove an admission by the defendant. The fact that the answer interposed in the case contains an admission is sufficient prima facie to charge the defendant with it; but if it appears that the defendant had no knowledge of the admission, that it was made without his authority and without any information which justified it, it is substantially deprived of value. The rejection of this evidence was prejudicial error.
For these reasons the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.