Wells v. Monihan

• Decision Date: 01 December 1891
• Citation: 29 N.E. 232,129 N.Y. 161
• Parties: WELLS v. MONIHAN.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 161

29 N.E. 232

WELLS

v.MONIHAN.

Court of Appeals of New York.

Dec. 1, 1891.

Appeal from supreme court, general term, third department.

Action in the name of Theresa Wells, treasurer of Excelsior Assembly No. 4,120 of the Knights of Labor, against Edward H. Monihan and John Stack, upon a promissory nore made by defendants. The note was in the following form:

‘Amsterdam, N. Y., Nov. 26, '86.

‘I, the undersigned, promise to pay, 6 months after date, the sum of $500, which was received by the local executive board, K. of L., from Excelsior Assembly 4,120, K. of L., to Excelsior A. 4,120 or their treasurer.

E. H. MONIHAN.

‘JOHN STACK.’

Plaintiff obtained judgment, which was affirmed by the general term. Defendant Monihan appeals. Affirmed.

Edward J. Meegan, for appellant.

Charles S. Nisbet, for respondent.

FINCH, J.

So far as the defense in this case rests upon the statute of frauds, it must fail for two reasons. No such defense has been pleaded, and it is not raised by the averments of the complaint, and without one or the other of these conditions the defense, if existing, cannot be made available. Porter v. Wormser, 94 N. Y. 450. And then there is the further difficulty that the referee has found as a fact that the consideration of the note was advanced to the defendants, and refused to find that the loan was made to the local executive board. The evidence was contradictory, but clearly sufficient to justify the finding; and so we must hold the defendant's promise to have been original, since there was no primary debt established to which it could have been collateral. The effect of the revocation of the charter by the superior authorities of the Knights of Labor was not to destroy the property rights of the association, as between itself and its debtors, because these sprang from the law of the state, and not from the rules and regulations of the order. The latter are therefore not here in question. It is not claimed that they operated in any manner to vest the property of a local assembly in any superior officer or body upon the revocation of a charter. That claim was made in the answer, and repeated upon the trial, but is disavowe 1 here. As a reply to the case of Austin v. Searing, 16 N. Y. 112, which denied the power of confiscation in organizations like the present, the learned counsel for the defendant explicitly admits in his brief that ‘the general executive board did not assume to divest the title to the property of No. 4,120;’ and, speaking of its order issued by the general secretary, adds: ‘This order did not claim to give a title to property to any one.’ The only effect asserted is that the general secretary was entitled to become, not the owner, but the custodian, of the property, ‘subject, of course, to the legal rights of the parties.’ There is no question of custody in the case. The note is in the possession of the association, and there is no party before the court entitled to dispute that custody, and it is conceded that nothing has occurred to transfer elsewhere the ownership of the obligation. The whole defense of failure of...