Opinion
Argued October 24, 1889
Decided November 26, 1889
George W. Van Slyck for appellants. F.A. Paddock for respondents.
A sole surviving partner can, without the assent of the representatives of the deceased partner, make a valid general preferential assignment of the property which belonged to the firm for the benefit of its creditors. ( Williams v. Whedon, 109 N.Y. 333.) The provision in the assignment which devotes the individual property of John I. Brooks to the payment of the creditors of the firm is valid. ( Crook v. Rindskopf, 105 N.Y. 476. )
The plaintiffs assert that the assignment devotes property which belonged to the firm to the payment of the individual debts of John I. Brooks, and is, for that reason, void. Assuming the rule laid down in Wilson v. Robertson ( 21 N.Y. 587) to be applicable to an assignment executed by a surviving partner under the circumstances disclosed in this record, the plaintiffs are not in a position in this action to avail themselves of this objection. It is the creditors of the firm who are injured by the provision which devotes firm property to the payment of individual creditors. The plaintiffs are the creditors of John I. Brooks, and became such with knowledge of the death of Edward C. Brooks. They are not defrauded, nor hindered, nor delayed in law or in fact by the application of firm property to the payment of the creditors of John I. Brooks, but are benefited.
A judgment setting aside the assignment, as to these plaintiffs, would afford them no remedy against the firm property, and they cannot prosecute this action for the sole benefit of the creditors of the firm who do not complain. ( Bostwick v. Menck, 40 N.Y. 383; Royer Wheel Company v Fielding, 101 id. 510; Crook v. Rindskopf, 105 id. 476; Williams v. Whedon, 109 id. 333, 338.)
The plaintiff's debt was contracted by John I. Brooks as surviving partner of the firm, though in law it is his individual debt, and it is very clear that their claim was intended to be, and is, embraced within the debts directed by the fourth clause to be paid by the assignees.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.