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Pophan v. Rubin

134 N.Y.S. 1067 Court Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ. Decision date 1912-05-09 English

Delivered by SEABURY, J.

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p. 1067
POPHAN v. RUBIN et al.
(Supreme Court, Appellate Term.
May 9, 1912.)

Headnote

Set-Off and Counterclaim (§ 44[1] )—Mutuality of Claims—Partnership. Partners, sued on a debt of the partnership to a bankrupt, cannot set off a debt of the bankrupt to one of the partners individually.
[Ed. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig §§ 82-96, 98, 99; Dec. Dig. § 44.*]
p. 1068
Appeal from City Court of New York, Trial Term.
Action by William S. Pophan, trustee in bankruptcy of.the Dart Cereal Company, against Samuel C. Rubin and another, copartners, composing the firm' of Rubin & Willner. From a judgment on a verdict directed for plaintiff, defendants appeal. Affirmed.
Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ.
Samuel S. Breslin, of New York City, for appellants.
Hirsh & Newman, of New York City (Leon N. Futter, of New York City, of counsel), for respondent.

The plaintiff, as trustee in bankruptcy of the Dart Cereal Company, sues the defendants to recover for goods sold and delivered to the latter by the Dart Cereal Company. The Dart Cereal Company was adjudicated a bankrupt oifjune 26, 1911. The defendants are copartners. The defendants admitted the cause of action alleged in the complaint, and by way of set-off alleged that prior to the institution of the bankruptcy proceedings the Dart Cereal Company was indebted to Rubin, one of the defendants, in the sum of $350.

The learned court below directed a verdict for the plaintiff. We think that the direction of the court below was correct. The individual claim of one of the partners could not properly be set off against a claim against both partners upon their joint debt. Hunter v. Booth, 84 App. Div. 585 , 82 N. Y. Supp. 1000 ; Thomas v. Noonan, 133 App. Div. 459 , 118 N. Y. Supp. 25 ; Blumenthal v. Katz, 132 N. Y. Supp. 314 .

Judgment affirmed, with costs. All concur.

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