Goodman v. Goetz — 36 N.Y. St. Rep. 731

Majority

p. 731

Eli M. Goodman, Resp’t, v. August Goetz et al., App’lts.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

1. Partnership—Power op partner to give bill op sale.

One partner is the authorized agent of the others for settlement of the partnership liabilities even by transfer of the partnership property, and, therefore, may give a bill of sale in payment of a firm debt without the consent of his copartners.

2. Conversion—Evidence.

In an action for conversion against the sheriff, where his indemnitors have been substituted, it is not error to admit the bond of indemity in evidence, although a cause of action has not been alleged against the indemnitors by a supplemental complaint, where one of the indemnitors was an original defendant in the action, and the objection is general in behalf of all the defendants.

p. 732

3. Jury—Irregularity in drawing.

An objection on the ground of irregularity in the drawing of a jury to be available must be made before the jury is drawn. The presumption is always in favor of its regularity.

Appeal from order denying motion for a new trial.

Leopold Leo, for app’lts; Henry L. Landon, for resp’t.

Appeal from an order denying defendant’s motion for a new trial. Action for conversion of certain merchandise, claimed by plaintiff under a bill of sale from the firm of Pohlman & Pigge and levied upon by the sheriff under an execution on a judgment confessed in favor of defendant Helena Figge. The record discloses various allegations of error; but, for the most part, they are so manifestly frivolous as not to warrant serious consideration. Perhaps, however, three of the alleged errors may justify a word of comment.

(1.) Plaintiff’s title to the goods was challenged upon the grounds: First, that the one partner who executed the bill of sale had no power to do so without the consent of his co-partner; and secondly, that the transfer was made with intent to defraud creditors. As to the first ground, it suffices to say that the transfer of the goods to plaintiff was in payment of a firm debt, and that one partner is the authorized agent of the others for settlement of the partnership liabilities, even by transfer of the partnership property. Van Brunt v. Applegate, 44 N. Y., 544 ; Mabbett v. White, 12 id., 443; Chester v. Dickerson, 54 id., 1; Graser v. Stellwagen, 25 id., 315.

As to the second ground, the only pretense of fraud is founded on an alleged want of possession by the vendee; but the evidence is ample to show an immediate delivery and a continuous possession.

(2.) The second imputation of error is equally untenable. It was not necessary by an amended or supplemental complaint to bring in the indemnitors, or to show a cause of action against them. Pool v. Ellison, 30 N. Y. State Rep., 135.

Indeed, the point was not sufficiently presented by appellant’s exception to the admission of the bond in evidence; for Helena Figge, one of the indemnitors, was an original defendant with thfe sheriff; and as to her the bond was competent evidence. But, the objection was general, in behalf of all the defendants.

3. Another matter urged by the appellant as a ground for reversal of the order has reference to an alleged irregularity in the drawing of the jury. It is sufficient to say in answer to this, that the presumption is always in favor of regularity; and to make the objection available, it must affirmatively appear that it was made before the jury was drawn. The record before us fails to show that the objection was thus made and hence the irregularity, if any, must be deemed to have been waived.

The order appealed from should be affirmed, with costs.

Allen, Bischoef and Pryor, JJ., concur.