Stadelman v. Loehr

Headnote

The temporary insanity of one partner does not authorize the other partner to make a, general assignment.

Appeal from an order continuing an injunction and appointing a receiver in tbis action.

Tbe plaintiff and tbe defendant Charles Jaburg were engaged in .business as copartners. Tbe plaintiff attended to tbe business in the city of New York, and Jaburg traveled about tbe country obtaining orders for it. Tbe plaintiff was placed in tbe Bloomingdale asylum as an insane person, on tbe 13th of May, 1887, and discharged on tbe eighth of June, of tbe same year. His partner returned to tbe city of New York, and finding tbe affairs of bis business to be such, in bis judgment, as to justify tbe act, be on tbe 14th of May, 1887, made a general assignment for tbe benefit of creditors to bis co-defendant in tbis action. Two or three days preceeding tbe assignment, and while be states be did not consider it to be necessary, be dehvered to tbe assignee goods of tbe partnership amounting in value to tbe sum of $1,500 in payment of bis own individual indebtedness, and wbicb after tbe assignment it is stated to have been agreed should by means of their proceeds be added to tbe assigned property.

Tbe court at General Term said: “ Tbe court considering tbis assignment to be either fraudulent or made without authority, and tbe disagreement of tbe partners to be such as to require that to be

done, appointed a receiver of the partnership effects. The assignment made by the partner Jaburg, without the authority or concurrence of the plaintiff, who was his copartner, was not justified under the circumstances. There appears to be no reason for believing that the insanity with which the plaintiff at the time was affected, would be more than temporary in its continuance, and upon that circumstance the copartner was clearly not authorized to make a general assignment of the goods and effects of the firm for the benefit of creditors. Where that has been permitted to be done by one partner the other has been shown to have either absconded or left the business of the firm subject to the control of his copartner, or to have given him some direct authority, including that act, or the other partner has been deceased. ( Welles v. Ma/reh, 30 N, Y., 344 ; Pabner v. Myers, 43 Barb., 509 ; WilUcums v. Whedon, 39 Hun, 98 .) Neither these authorities, nor any other referred to, in their consideration of the law, proceed so far as to empower one partner to make a general assignment, where his copartner may be only temporarily disabled by illness, as was the fact in tins instance. There was no probability, after what had transpired, that the partnership business could be managed and. settled amicably by the parties themselves, and the person to whom the assignment was made was shown not to have been acquainted with the business and to be insolvent, having a large judgment against him shortly before the execution and delivery of the assignment.

“ The order which was made appears to have been right and it. should be affirmed, with ten dollars costs and disbursements.”