Woarms v. Bauer — 26 N.Y. St. Rep. 936

Majority

p. 936

Albert L. Woarms et al., Resp’ts, v. Moritz Bauer, App’lt.

(City Court of New York, General Term,

Filed October 31, 1889.)

Headnote

1. Partnership — Executors of deceased partner.

Where the articles of copartnership provide that if the senior partner died his interest should he continued by his personal representatives, and upon his death his executors agreed to and did continue the partnership with the survivors in the old firm name, Held, that such arrangement did not violate the statute in regard to the use of firm names, and was not illegal so far as debtors of the firm are concerned.

2. Same — Parties.

A debtor of the firm cannot question the validity of such arrangement in defense to an action against him, nor can he successfully plead a misjoinder of parties on account of the executors being joined as plaintiffs with the surviving partners.

The complaint alleged that between the 15th day of August, 1888, and the 15th day of October, 1888, David S. ¡Hess, Charles T. Parks, Louis J. Lesser and Albert L. Woarms were copartners, doing business in the city of New York, under the firm name and. style of D. S. Hess & Co., and as such copartners, during the period aforesaid, performed work, labor and services for and furnished materials to the defendant, at his special instance and request, in decorating the interior of his dwelling-house.

That the reasonable value of such interior decorations was $566.33.

That thereafter, and before the commencement of this action, the aforesaid Charles T. Parks retired from said firm, and assigned all his right, title and interest in and to the aforesaid claim to David S. Hess, Louis J. Lesser and Albert L. Woarms, continuing to do business as copartners under the firm name and style of D. S. Hess & Co.

That, by virtue of the articles of copartnership between the persons last named, it was mutually agreed between them that, in the event of the demise of the aforesaid David S. Hess, before the expiration of the stipulated term of partnership, his interest as a partner in said firm of D. S. Hess & Co. should survive and accrue to and be continued by his personal representatives, and said business should be continued by said Louis J. Lesser and Albert L. Woarms and the said representatives of said David S. Hess as copartners; and that thereafter, before the expiration of said stipulated term of partnership, and before the commencement of this action, said David S. Hess died, leaving a will by which Albert L. Woarms, Martin S. Fechheimer and Sarah Hess, above named as plaintiffs herein, were appointed executors thereof, and were directed to carry out the provisions of the copartnership articles aforesaid of the firm of D. S. Hess & Co.

That on the 11th day of March, 1889, said will was duly proved and admitted to probate in the office of the surrogate of the county of New York, and letters testamentary thereupon were

p. 937

“ Five hundred (500) to six hundred (600) tons kainit in bulle, thereafter duly issued and granted by the surrogate of said county to the above named Albert L. Woarms, Martin S. Fechlieimer and Sarah Hess, as executors, and that they thereupon duly qualified as such executors, and entered upon the discharge of the duties of their said' office, and carried out the aforesaid provisions of the copartnership articles of the firm of D. S. Hess & Co., as directed by the will.

The defendants interposed a denial, which was waived at the trial, and they relied upon the objection reserved by the answer, that there was a misjoinder of parties plaintiff, in this, that the action ought to have been brought by the surviving members of the old firm, without joining the executors of the deceased member thereof. The action was submitted to the trial justice on the pleadings, conceding the allegations of the complaint to be true, to the end that the plea of misjoinder might be determined as the only issue in the case.

The trial judge directed judgment in favor of the plaintiffs, and the defendant appeals.

Donohue, Newcombe & Cardozo, for app’lt; M. A. Lesser, for resp’ts.

We are aware of the rule that the surviving partners succeed primarily to all the rights and interests of the partnership, that they have entire .control of all the partnership property, and the sole right to collect the partnership debts, to the exclusion of the personal representatives of the deceased member. The complaint, however, alleges reasons why that rule is inapplicable. The co-partnership articles provided that if, during their continuance, David S. Hess died, his interest in the firm should accrue to and be continued by his personal representatives, that he did die during the continuance of the co-partnership, and that his personal representatives, i. e., his executors, pursuant to the provisions of said articles, and of his will, agreed to, and did contóme the partnership business. Such a partnership arrangement does not violate the statute in regard to the use of firm names, Laws of 1886, chap. 262, nor is it illegal, so far as the defendant, a mere debtor of the firm, is concerned. The parties in interest admit and assert the validity of the arrangement by which the surviving partners and executors are made joint owners of the claim in suit, and no one interested in the estate of the deceased partner seems to object to it. The defendant has no power to question its validity in defense to an action for a debt in which the surviving partners are before the court sustaining it. How far the estate of the deceased partner might have repudiated it, Stewart v. Robinson, 26 N. Y. State Rep., 117, need not be inquired into now. It follows -.that the judgment must be affirmed, with costs.

Mo Adam, Ch. J., Ehrlich and Holme,. JJ., concur.