Baumert v. Daeschler — 65 Misc. 526

Majority

p. 526

Frank J. Baumert, William A. Baumert and Henry Bahr, Copartners, Doing Business under the Firm Name and Style of Frank X. Baumert & Company, Appellants, v. Louis Daeschler, Respondent.

(Supreme Court, Appellate Term,

January, 1910.)

Headnote

Assignments — Requisites and sufficiency—Assignments in writing: Constructive assignments — In general: Interpretation and effect — What property passes in general.

Where two partners purchase the interest of the third partner upon his withdrawal from the firm and he thereupon by a written instrument sells and transfers to them “ his one-third interest in all of the property and the assets of the partnership,” such instrument is effectual to transfer to them the interest of the retiring partner in a judgment previously recovered by the firm which is a partnership asset.

And, where the two remaining partners thereafter agree to take another person into their firm and sell and transfer to him the interest they had acquired from the retiring partner, no formal assignment is required to enable the new firm to maintain an action upon the judgment against the defendant therein.

Appeal by the plaintiffs from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Hew York, borough of Manhattan, first district.

David J. Gladstone, for appellants.

James Moffett, for respondent.

F. J., Wm. A. and Jos. Baumert, composing the firm of F. X. Baumert & Co., sued and recovered a judgment in their favor, as such firm, against the defendant here. Thereafter Jos. Baumert withdrew from the firm, and by a written instrument dated March 4, 1904, sold and transferred to his associates, Wm. A. and F. J. Baumert, his one-third interest in all of the property and the assets of the partnership; and the last two continued the partnership business under the same name. Subsequently they entered into an agreement in writing with Henry Bahr to take him into the firm and sell and transfer to him the one-third interest which they had purchased from Jos. Baumert. The agreement to transfer this interest seems to be executory, but the partnership appears to have been continued by these three parties under the same name; and F. A. Baumert testified that he and Wm. A. Baumert sold to Bahr the identical interest in the firm which they had bought from J os. Baumert. The action at bar was brought in the name of these last three parties as composing the firm of F. X. Baumert & Co., to recover a judgment on the original judgment in favor of the firm as first constituted. The trial court dismissed the complaint, without prejudice; and the only question here is whether the action was maintainable by these plaintiffs under the instruments above mentioned and without any other assignment of the judgment sued on. At common law the assignee of a chose in action could not sue in his own name. The rule is otherwise under the statutes of this State; an assignee sues in his own name. The statute here also expressly authorizes the assignment of a judgment, but prescribes no formality as essential to the validity of the assignment. The judgment was unquestionably a partnership asset, and no good reason has been suggested why an instrument by one partner to another selling and transferring to the latter all of the former’s interest in the partnership assets does not pass his interest in a judgment as well as in the firm’s other personal assets. When a partner withdraws and assigns his interest to his associates, they may certainly pursue in their names the claims due to the partnership. Wm. A. and F.

p. 528

have sued if they had continued the partnership without taking in Bahr. Their partnership agreement with him, if one was made, cannot affect the liability of the defendant on the original judgment, which either Wm. A. or F. J. Baumert would be entitled to satisfy for the firm of F. X. Baumert & Co., even if ,Tos. Baumert had not sold his interest; and after such sale Jos. Baumert could not so represent the firm. A judgment now on the original judgment would bar any action by Jos. Baumert.

The judgment dismissing the complaint was error and should be reversed.

Lehman, J., concurs; Giegerich, J., concurs in result.

Judgment reversed and new trial ordered, with costs to appellants to abide the event.