Dodd v. Dreyfus

Headnote

When a retiring partner becomes a mere surety for the firm debts— in such case he is released by an extension of the time of their payment by the creditor — e. g. ■ — • talcing notes payable in futuro.

Appeal by the defendant Edward Dreyfus from a judgment in favor of the plaintiff, entered against him by direction of the judge at the circuit, for $2,312.66. The action was brought to recover rent due to the plaintiff.

The court at General Term said: “ Although the articles of partnership were excluded, yet the evidence which was received, without objection, clearly shows that such partnership did exist between the defendant Edward Dreyfus and M. J. & S. M. Hyatt, for the manufacture of lime in the county of Ulster, and that the same was dissolved, and that the defendant Dreyfus retired from the business, which was continued by the Hyatts, who assumed the payment of the debts of the old firm, including the rent which was due to the plaintiffs. The evidence shows that the plaintiffs had knowledge of the foregoing facts. A new lease was executed by the plaintiffs to the Hyatts of the same premises, and the latter gave to the plaintiffs a note for $3,400, for the rent which had become due, which was indorsed by one Benedict Dreyfus, upon which note there was paid $1,400, and a new note taken by the plaintiffs for the balance $2,000, which was executed June 28, 1875,-payable one month after its date. We do not perceive, from the evidence, that the defendant, Edward Dreyfus, was at the time aware of the arrangement by which the notes were executed to secure the payment of the rent. The acceptanee of such notes, under the circumstances, had the effect to

extend the time for the payment of the rent, and that too, it would seem, without the knowledge and consent of Edward Dreyfus. The dissolution of the partnership, and the retirement of Edward Dreyfus, and the assumption by the Hyatts of the debts of the old firm, constituted Edward Dreyfus merely a surety for the payment of such debts, including the rent in question, and the extension by the plaintiffs of the time for the payment of such rent, with a knowledge of all the circumstances, and without the consent of Edward Dreyfus, had the effect to discharge his liability for such rent. (Millerdv. Thorn, 56 N. Y., 402 ; 061-grove v. Tollman, 67 id., 95.)”