Nordlinger v. Anderson — 5 N.Y.S. 609

Majority

p. 609

Nordlinger v. Anderson et al.

(Supreme Court, General Term, First Department.

May 24, 1889.)

Headnote

1. Partnership—Firm Debts—Borrowed Capital.

Where one partner contributes borrowed money to the capital of the firm, and the other partner only puts in property that afterwards proves worthless, a partnership note, given in payment of such borrowed capital, is a valid firm debt.

2. Assignment for Benefit of Creditors—Validity.

Withdrawing firm money from a bank, and using it to pay in part a valid firm debt, does not vitiate an assignment made by the firm the following day, though the person to whom the money was paid is a preferred creditor under the assignment.

8. Same—Evidence.

An assignment for the benefit of creditors will not be adjudged fraudulent on the unsupported testimony of one of the assignors, contradicted by several unimpeached witnesses.

Appeal from special term.

p. 610

Action by Louis Hordlinger against Adolph Anderson, Charles A. Muns, Clinton S. Harris, and Charles Muns, to set aside an assignment for the benefit of creditors, made by Adolph Anderson and Charles A. Muns, as copartners, to defendant Harris, in which assignment Charles Muns, father of Charles A. Muns, was a preferred creditor. The evidence at the trial showed the following state of facts: When the partnership was formed Charles A. Muns contributed as his share of the capital $3,000, which he had borrowed from his father, and Anderson contributed the assets of his former business. It was afterwards ascertained that these assets were worthless, and thereupon the partners'gave Charles Muns a firm note for $3,000 in payment of his loan to Charles A. Muns. In addition to this note the firm also became indebted to Charles Muns for money lent from time to time. Plaintiff argued that this note was a fraud on the firm creditors, and that Charles Muns was not a Iona Jide creditor of the firm, so far as this note was concerned. The day before "the assignment nearly all the firm funds in the bank were withdrawn and paid to Charles Muns in part satisfaction of his claim. Plaintiff’s complaint was dismissed at the hearing, and he appeals.

Argued before Van Brunt, P. J., and Bartlett and Macomber, JJ.

Fred W. Hinrichs, for appellant. James M. Hunt, for respondent Charles Muns. John H. Corwin, for respondent Harris.

The only question before us is one of fact. The learned judge at the trial, evidently upon an attentive examination of the evidence, has dismissed the complaint upon the merits. The ground upon which it was sought to set aside the assignment made to the defendant Harris by the defendant Anderson for the benefit of creditors was that the respondent Charles Muns was preferred in the sum of $2,000 more than was the actual indebtedness of the assignor to him, and that there had been an unlawful andfraudu■lent disposition of funds of the assignor immediately prior to the assignment. The clear weight of the evidence shows that both of these grounds of assault •upon the assignment are untenable. It is conclusively established that the indebtedness of the firm to Charles Muns was $9,000, being $2,000 in excess ■of the sum for which he was preferred in the assignment. Several unimpeached and apparently just witnesses show that the other claims against the ■validity of the assignment were untenable, and that there was no unlawful payment of funds of the firm preceding the assignment. Against the evidence upon which the learned judge at special term has rested his decision there is substantially the unsupported testimony of Adolph Anderson alone. His deposition was taken by commission at Hew Orleans. It appeared upon the trial that such testimony was given under written memoranda or directions •sent to him in behalf of the plaintiff before his deposition was taken. Had this been known before trial it would have been sufficient to suppress the deposition. On the whole, we are inclined to think, when such fact was made to appear at the trial, the judge had the power then to suppress it. But this proposition is unimportant now, in view of the final disposition that was made of the case by him. The judgment should be affirmed, with costs. All concur.