Kendall v. Rider , 1861 N.Y. App. Div. LEXIS 154 ( 1861 )

By the Court, Gould, J.

The precise facts of this case are, that William Kirk mortgaged his individual property to' secure a partnership debt; and on that mortgage his property was sold and the partnership debt thereby paid. Further, by order of this 'court, it has been ascertained that the partnership'owned a part'of the real estate, the title to which Was in the tWo partners as tenants in common; this partnership right growing out Of the' expending of partnership funds on'the buildings and machinery. The rea] estate having been sold, and the avails (including the part1 belonging to the partnership) being in the hands of an assignee, -it- is Claimed that this court has equitable1 jurisdiction; and the special term of der has directed-: the partnership part5 of the fund to be paid to the individual creditors of William Kirk, instead of paying it to the creditors of the'partnership.

'Thm unable to see the rights' of the parties—either legal or equitable—in precisely this light. :Had William Kirk, with his oWn moneyj paid a partnership debt, he would by that'act have become a creditor of the partnership; and then, on' a winding up of the partnership affairs, he would, as a creditor, have been entitled to payment. But he would not have been' entitled to priority in payment over other creditors of the firm. And I do not see how his assignee obtains any higher equity than William Kirk had. And as the members of the firm assigned the partnership property, giving preferences, it seems to me that the partnership interest in the real estate must, with the rest of the partnership fund, follow the course of that assignment, and go into the hands of the partnership assignee; and that no part thereof can be paid to William Kirk’s assignee, except as a general creditor of the firm.

[Albany General Term, May 6, 1861.

The order, I think, should be reversed, or so modified as to conform to this view.

Ordered accordingly.

Gould, Hogeboom and Peckham, Justices.]