Rockafellow v. Miller — 12 N.Y. St. Rep. 295

Majority

p. 295

Emily Rockafellow, App’lt, v. Samuel H. Miller et al., Respt’s. Edgar B. Banks, App’lt, v. Same, Resp’ts.

(Court of Appeals,

Filed December 13 1887.)

Headnote

"Partnership—What constitüeb one a partner.

The defendant Miller and one Eastmead formed a partnership under the firm name of M & E., to continue a specified length of time. The profits of the business were to be divided equally. It was agreed between East-mead and one Folk, that Folk was to receive a certain share of the profits of said business which should accrue to Eastmead. This arrangement was assented to by Miller upon condition that the agreement should in no respect conflict with the terms of copartnership between himself and East-mead. Held, that the arrangment between Folk and Eastmead did not give Folk any right or interest in the firm business or make him a member of the firm of M. & E., following Burnett v. Snyder (70 H, Y., 344.)

Appeal from a judgment of a general term of the city ■court of Brooklyn, affirming a judgment of the special term in favor of defendants. ■

The actions in which these appeals were taken were tried -together, and by stipulation were argued together on the appeal to the general term, and are to be considered together on this appeal.

The actions were brought by judgment creditors of the •defendant Folk to determine whether the property and assets of his business, which he had conducted under the name of “Miller & Eastmead,” and his title thereto, passed by virtue of a general assignment for the benefit of creditors executed by the defendant Samuel H. Miller to the defendant John C. Cook, bearing date July 18, 1882, which general assignment purported to convey and transfer the assets and property of the said business of Miller & Eastmead.

Upon the trial, of the action the defendants Miller and Cook, having appeared and answered, contended that the assignment from Miller to Cook did transfer and convey to the defendant Cook all the assets and property of the business which had been conducted under the name of Miller & Eastmead, and that the defendant Miller had the right ;and title sufficient to carry into effect such transfer.

p. 296

The plaintiffs contended that the defendant Miller had no-such right or title.

The defendant Folk did not appear or defend in either of the suits.

The court at special term, without a jury, found in favor of the defendants Miller and Cook, and against the plaintiffs, and awarded judgment in favor of these defendants- and against the plaintiffs.

Exceptions to such findings were duly filed by the-plaintiffs, and appeals from the judgments of the special-, term were duly taken to the general term of the city court, where the judgments were affirmed. It is from these-judgments of affirmance that these appeals now come before this court.

Frank J. Dupignac, for app’lt; Frederick G. Dow, for resp’ts.

The plaintiff, claiming to be a creditor of Samuel H. Miller and Jesse E. Folk, after service of the-summons on the defendant Folk, recovered judgment against them as joint debtors in the sum of $1,064.48. Execution issued against the joint property of Miller and Folk, and the individual property of Folk, was returned nulla bona. This action was then brought by the plaintiff" as such judgment creditor against Miller and one John C. Cook. Its object was to set aside an assignment made by~ Miller to Cook as assignee, for the benefit of Miller’s creditors. The case was tried at special term and judgment of dismissal ordered in favor of the defendants. The conclusion of the trial judge upon the evidence was satisfactory to the general term, and an examination of the record discloses no finding that is not supported by testimony. We have-only to see whether upon these findings any error was committed by the trial judge in his conclusion of law.

It appears that on the 1st of January, 1873, the defendant Miller and one Eastmead formed a partnership under the firm name of Miller & Eastmead, to commence at that time and terminate on the 31st of December, 1877. The-profits of the business were to be divided equally. It was-agreed between Eastmead and Folk that Folk should receive such share of the profits of the business of Miller & Eastmead as should accrue to Eastmead, leaving it to the discretion of Folk as to the portion which Eastmead should retain, such portion, however, not to be less than one-fifth. This arrangement between Eastmead and Folk was assented to by Miller upon condition that the agreement should in no-respect conflict with the conditions or terms of co-partnership between himself and Eastmead, or in any respect invalidate or prejudice the rights secured by the co-partner

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ship articles. Folk did not become a partner in said firm, nor did either of the parties thereto intend that he should. The business was continued by Eastmead and Miller until December 31, 1877, when the co-partnership expired by limitation and Eastmead’s connection with the business ceased. After that time and until the 18th of July, 1882, the business was continued by Miller individually^ but in the name of Miller & Eastmead; the property and assets theretofore belonging to or used in the business were employed and possessed by Miller as his own. On the 18th of July, 1882, he executed an assignment of all his property to the defendant Cook for the benefit of his creditors. The trial judge found that the assignment was in all respects lawful, just and fair, and was made by Miller and accepted by Cook in good faith and without any fraud. Upon these facts it necessarily followed that the plaintiff’s action failed.

The arrangement between Eastmead and Folk, as it was not intended to, so it did not give Folk any right or interest in the firm business, nor did it make him a member of the firm of Miller & Eastmead. His profits were to come, not from, the firm, but from Eastmead, and the case is brought directly within our decision in the case of Burnett v. Snyder ( 76 N. Y., 344 .)

There are further facts found by the trial judge, in effect that Folk knew of the intended assignment and ratified it, but that is unimportant since in the other view he had no interest whatever in the business of the firm, nor any right which could be reached by a creditor until after the firm debts had been satisfied. Whatever claim he had was-against Eastmead, with whom alone he had contract relations. We think the trial judge properly dismissed the-complaint and that the general term committed no error in affirming its decision.

.The judgment appealed from should, therefore, be-affirmed.

All concur, except Rapallo, J., absent.