Rosenberg v. . Block , 102 N.Y. 255 ( 1886 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The jury found upon evidence which justified the submission of the question to them, that the defendants, when they received the goods, had notice that they belonged to a special partnership, doing business under the name of "H. Rosenberg," and were not the individual property of Rosenberg. Upon this finding it is plain that there was no right to set off the individual debt of Rosenberg, against the plaintiff's claim. It is insisted, however, that the trial judge improperly excluded certain questions put to the plaintiff Rosenberg, relating to the disposition by his general assignee for the benefit of creditors of the assigned property, under his assignment of January 18, 1882, by which it was sought to prove that the assigned property in whole, or in part, constituted the contribution of the special partner to the capital of the special partnership formed between the assignor Rosenberg, and his sister, Mrs. Bottigheimer, February 2, 1882. It is also insisted that the judge erred in excluding other questions put to Rosenberg, as to the consideration of the indebtedness of about $4,000 for which Mrs. Bottigheimer was preferred in the assignment, and questions relating to the management of the special partnership, and as to who received the profits of the business. The defendants in their answer alleged in substance that the pretended special partnership was a mere sham, and that Rosenberg was in fact the sole person interested in the business and assets, and that the partnership was resorted to as a mere cover to prevent his creditors from reaching his property. If these facts had been established the right of set-off attached. The questions excluded should, we think, have been allowed upon this issue. They were not objected to or excluded upon any suggestion as to the order of proof, but on a general objection, no special ground being specified. If the answers had disclosed that there was no debt owing to Mrs. Bottigheimer from Rosenberg when his assignment was made; that the assigned property was transferred to her by the assignor in pretended payment of this fictitious debt, and that Rosenberg acted nominally as her agent in the transaction, and that immediately thereafter the special partnership was formed, and this property was put in as the capital of the special partner, and that Rosenberg received and appropriated the profits of the business; it cannot be said that these facts were not relevant to the issue tendered by the answer as to the real ownership of the consigned goods. In passing upon the exception the defendants are entitled to the presumption that the answers to the excluded questions, if allowed, would have tended to establish the facts upon which they relied, and to which the questions pointed. The claim that the defendants cannot in this action assail the bona fides of the assignment of Rosenberg, under the rule that a creditor at large cannot, before reducing his claim to judgment, maintain an action to set it aside as fraudulent (Southard v. Benner 72 N.Y. 424), is not tenable. The defendants are not seeking to set aside the assignment. Being called upon to pay a debt, they answer that they have a counter-claim against one of the plaintiffs, and that he is the sole party interested in the claim which is sought to be enforced against them. The assignment has been executed, and we see no principle which precludes the defendants from showing that the property which went into the special partnership, was his, and that the pretended transfer by the assignor to Mrs. Bottigheimer was a mere cover for Rosenberg. For the error in rejecting the answers to the questions referred to, the judgment should be reversed.

All concur.

Judgment reversed.