Majority
p. 479NEW YOEK COMMON PLEAS. John E. Darrow, Receiver, &c. agt. Richard I. Bruff, and others. Special Term, December, 1868.
Headnote
A general assignment for ike "benefit of creditors, of a limited partnership, executed and acknowledged by the resident partner in person, for himself, for the firm and aa the attorney in fact pf the non resident partners, is sufficiently executed.Non resident members of a firm are not necessarily included in the statutory requirement of a personal execution and acknowledgment by each of the assignors.
The plaintiff as a receiver, appointed in supplementary-proceedings, filed a bill to set aside the general assignment of a special partnership, upon the single ground that it was not executed and acknowledged by all of the general partners in person, before delivery to the assignee. One of the partners resided in New York, and the- other two in New Orleans. The remaining facts are sufficiently stated In the opinion.
William H. Dickinson, for plaintiff.
Augustus F. Smith, for defendant.
The instrument in question was the general assignment of a special or limited partnership. It was acknowledged by the resident partner in person, for himself, for the firm, and as the attorney, in fact, of the non-resident partners, who promptly ratified his acts. It is, therefore, distinguishable from Adams agt. Houghton (3 Abb. N. S. 46), which was a case of an assignment by resident debtors exclusively. That case went far enough, and I entirely con-concur in Judge Brady’s intimation that non-resident members of a firm are not necessarily included in the statutory
p. 480
requirement of a personal execution and acknowledgment by each of the assignors. The legislature could never have contemplated nor intended that the property of an embarrassed or insolvent firm should be left to be scrambled for in a creditors’ race of diligence, and to be sacrificed upon the first-acquired executions, while the assignment is traveling, perhaps thousands of miles, for the signature and acknowledgment of a single non-resident partner. Such • a construction would be especially unreasonable in the case of a limited partnership, where equality in the distribution of the assets is one of the duties imposed upon the partners. It would be a most inharmonious state of the law, were the practical working of the equality so prescribed made to effect a complete inversion of the intention. I am therefore of opinion that the assignment in question is valid and that the complaint should be dismissed with costs. .