Misc.] Supreme Court, March, 1921. even if we do violence to its plain intendment, and endeavor to read into the literal words a suggestion that it is hoped that the working class shall be put into actual control and possession of the instrumentalities of production, rather than of merely the "system" of production, as actually expressed, there is still absent any statement or even implication that this is to be accomplished by forcible or other unlawful means. Indeed, plaintiff's counsel do not in terms charge or claim that this expression in the preamble is, standing by itself, evidence of the unlawful purpose of the organization, but proceed, without further comment, after the sentence from the brief which I have just quoted: "Thus it is distinctly alleged in paragraph 13 of the complaint, extracts from which have been quoted, that the Amalgamated Clothing Workers of America was organized and exists, operates and exercises its functions and activities for the purpose of destroying the private ownership and substituting the rule of the proletariat, and transferring all private property from the present owners to the members of the Amalgamated Clothing Workers of America. An allegation that the Amalgamated Clothing Workers of America was organized and exists for the purposes aforesaid, and is carrying out these purposes, is tantamount to an allegation that all of its members together, by virtue of their membership in the Amalgamated Clothing Workers of America, are parties to these purposes and these activities, and thus a charge that the Amalgamated Clothing Workers of America was organized and is operating and conducting its activities is tantamount to a charge that all of its members are doing so." I have reproduced this paragraph from the brief to avoid the possible injustice of misinterpreting it. At the outset it is to be noted that the complaint Supreme Court, March, 1921. [Vol. 115. nowhere purports to set forth or quote from or even paraphrase the exact language of the constitution of the association. The allegation in this respect advisedly made "upon information and belief" is that the association "was organized, created, formed and established and still continues to exist, operate and exercise its functions and activities solely and only" for the "unlawful purposes" thereinafter set forth and hereinabove more fully recited. It seems to me to be quite plain that to allege merely that an association was organized and exists for certain purposes is far from asserting as matter of fact that all its individual members are pursuing or in favor of pursuing that purpose, or even that they are chargeable, expressly or impliedly, with knowledge thereof and have therefore acquiesced therein. The absence of any allegation that the constitution of the association recites or suggests the alleged unlawful purposes is significant. We are not dealing here with conjecture nor with possibilities of proof however difficult or intricate, but with allegations of fact to form the basis of a cause of action. Finally, however liberal may be the rules of construction to be applied to a pleading, I know of none which permits the interpretation of a general allegation of the purposes of an association as the equivalent of a categorical statement (which could have been couched in a few words) that all of its members are in favor of or are engaged in pursuing such purpose, or have directly or indirectly authorized or ratified acts in furtherance thereof. I come, then, to the averments of the complaint in regard to overt acts, as for example, in the 13th paragraph," that all of the defendants herein have combined and conspired and agreed to carry out all of the aforementioned purposes * by their acts and conduct," and in the 17th paragraph that "the Misc.] Supreme Court, March, 1921. defendants are wrongfully and unlawfully factories and coercing * instigating plaintiff's employees to cease work and have caused a general strike against manufacturers of clothing in the City of New York and are instigating persons to picket plaintiff's and intimidating plaintiff's employees." It is urged in plaintiff's brief that the words "all of the defendants herein " are equivalent to the phrase " all of the members of the Amalgamated Clothing Workers of America" and that "when the defendants' are referred to the reference is to all of the persons who are being sued through their representatives, such as president, treasurer, secretary,'" etc. This, however, is to give a forced and unnatural construction to the phrase "all of the defendants herein," which ordinarily means the defendants named in the caption or otherwise. Assuming for the moment that I would not be unwilling to strain the common meaning of words in order to give them the significance contended for, yet the draftsman of the complaint has incorporated therein several other phrases which compel the exclusion of such construction. Thus, for example, the allegation in paragraph 10 "that the defendants were and still are all members, agents or employees of the defendant, Amalgamated Clothing Workers of America," would be wholly unnecessary and meaningless if all the members of that association were already included as defendants by the mere representative presence of their president. But a conclusive answer to the claim for this construction is to be found in the 18th paragraph that "the defendant, Amalgamated Clothing Workers of America, has voted the sum of $1,000,000, to be collected from and contributed by the members of said defendant and that all of the defendants herein have approved and agreed * Supreme Court, March, 1921. [Vol. 115. to the collection of said sum and have proceeded to collect said sum from the members of the defendant union and have collected from said members a substantial portion of said sum." Here we have irrefutable evidence that the pleader intended the term "defendants" to apply to the persons actually named as defendants in the caption, in contradistinction to the term "all the members of the association," and that when he intended to designate the latter class he so expressly denominated them. Thus, in respect of the alleged acts, just as in regard to the alleged purposes, we find that the draftsman of the complaint has significantly omitted the simple averment that all the members of the defendant association have participated therein or have authorized or ratified the same or are chargeable with knowledge thereof. In my opinion, therefore, the complaint fails to allege a cause of action against all the members of the defendant association, and is defective in that respect. I have confined myself in the foregoing discussion exclusively to the question of pleading, but I may say that the papers submitted on the coincident motion for a temporary injunction convince me that the point discussed is not merely a formal one, but concerns the ultimate merits of the controversy. In view of the manner in which the complaint is framed, and in which the accompanying motion for a temporary injunction was argued it is not feasibleeven if it were desired-to consider the papers as seeking relief solely against some of the defendants as individuals. Much, if not most, of the allegations of the complaint and of the moving affidavits would have to be eliminated, since they do not bear upon the individual liability of the defendants, and new con Misc.] Supreme Court, March, 1921. siderations suggest themselves which are not covered by the papers. For these reasons the motion for judgment on the pleadings made by the defendants is granted, with ten dollars costs, with leave, however, to plaintiff to plead over within twenty days, if it be so advised. Ordered accordingly. HARRISON BOEHM, Plaintiff, v. EMMA H. PLATT, Defendant. (Supreme Court, Kings Special Term, March, 1921.) Contracts sale of real property-specific performance — title notice - rescission lease insurance (fire). A contract for the sale of real property under which title was to be closed on or before June 1, 1920, upon a five days' notice from the purchaser, provided that possession was to be delivered to him at the time of the settlement subject to an existing lease which contained a clause that if the building should be rendered untenantable by fire the rent should cease until the building could be put in complete repair. On April 10, 1920, while the seller was still in possession of the premises the building thereon was substantially damaged by fire. On May 28, 1920, about two weeks after the seller's attorney had written to the attorney of the purchaser that it was not the seller's intention to commence rebuilding until the purchaser had finally indicated his decision to accept the property or rescind the contract, the seller by letter refusing to extend the time of settlement, stated in substance that inasmuch as the purchaser's time limit for giving the notice of his readiness to settle had expired, defendant considered the contract broken by the purchaser. In an action for specific performance with abatement from the purchase price on account of the damage caused by the fire, held, that the five days' notice was required only in case the plaintiff availed himself of the implied privilege of closing the title before June first, the law day of the con |