Dayton v. Wilkes — 18 N.Y. Super. Ct. 655

Majority

p. 655

Abraham C. Dayton v. George Wilkes.

Headnote

1. A. & W. being partners, A., with the consent of W., transferred all his interest to D.; D. and W. covenanting with A. to continue the same business, and to collect and apply the assets of the old firm, (except such as was necessary to pay current expenses,) to pay the debts of the old firm. The new firm becoming embarrassed, D. instituted a suit against W. to obtain a dissolution of his partnership, an accounting between them and a proper application and distribution of the assets: Held, that A. could not, upon petition, obtain an order that he be made a party to the action, and that the complaint be so amended as to bring him before the Court on ■ pleadings presenting his alleged right to an equitable application of the property of the new firm, originally belonging to the old firm, to the end that his rights in such property might be determined, and the property distributed accordingly.

2. Such an action is not one for the recovery of personal property within the meaning of § 122 of the Code.

(At Special Term, October 28, 1859,

before Bosworth, Ch. J.)

This suit is brought by Dayton against Wilkes to obtain a dissolution of a partnership between them, and accounting an a distribution of the assets of the firm.

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James B. Devoe, upon petition and notice, applies .for an order that he be made a party to the suit, and that the complaint be so amended as to bring him before the Court, upon appropriate pleadings, to the end that his rights and interests in the property, which is the subject of the action, may be properly determined and protected, and for such other or further relief as may be • just.

The petition' states that Devoe and Wilkes were partners up to February, 1858, when Devoe transferred his entire interest to Dayton; that Dayton and Wilkes were to continue the business as partners, and have done so until this suit was brought, and that they agreed to collect-the assets of the old firm and apply them, (except so much as was necessary to pay current expenses,) to pay the debts of the old firm. That there are debts owing by the old firm, and that it has assets not yet converted or realized, and that the new firm is insolvent.

The papers in opposition to the motion tended to show that Devoe had instituted a suit in the Supreme Court against Dayton and Wilkes, with a view to obtaining therein the relief to which he was entitled in the premises, and that he had moved for an injunction to stay proceedings in this action until a determination could be had in that. That such motion was denied and that such action is still pending.

Devoe and the creditors of the old firm have an equitable right to insist that the assets of the old firm 'be applied to pay its debts. (Deveau v. Fowler, 2 Paige, 400.) The agreement of Dayton and Wilkes to so apply them is in accordance with such equity.

Can Devoe compel the plaintiff in this suit to make him a party to it, to enable him to set up and obtain a judicial determination of the claim above stated ?

The second sentence of section 122 does not confer on him that right, unless this be “ an action for the recovery of real or personal property ” within the meaning of that section. It is not an action to recover real property. Chapter 2, of title VII, of part II, of the Code, (p. 311, Voorhies’ Code of 1857-8, § 253,) and sections 277, 289, subdivision 4, and section 304, subdivisions 2 and 4, show very clearly that an action “ for the recovery of

p. 657

personal property ” is something entirely different from a suit by one partner against another, to procure a dissolution of the firm and an administration of its assets.

Whether a complete determination of the controversy between Dayton and Wilkes cannot be had, without prejudice to the rights of Devoe, or by saving his rights, and without his presence as a party, is not to be determined on a motion like the present. That is a matter for the determination of the Court before which the cause may be tried, or brought to trial. The present motion, therefore, cannot be granted. But Devoe may have a stay of proceedings in this suit long enough to enable him to institute a suit, upon a complaint properly framed to present his claim. If the suit in the Supreme Court is adapted to this object, a discontinuance of it and commencing a new suit in this Court would seem to be a useless expense.

The institution of a suit in this Court, would make it necessary to discontinue the one in the Supreme Court.

I see no reason why the complaint in the suit in the Supreme Court, if not now in the proper form, may not be so amended as to enable the whole controversy to be determined by one action. But of- this the petitioner must judge for himself.

The most relief that can be granted on the present motion, is an order staying proceedings in this action, except on the part of the receiver to collect and preserve the assets, for ten davs, to enable Devoe to institute an action against Dayton and Wilkes and apply for such relief as he may be advised. He must pay $7 costs of opposing this motion.