Greene v. Breck , 10 Abb. Pr. 42 ( 1860 )

Ingraham, J.

It is not necessary, nor would it be proper, for me to express an opinion now upon the question whether the assignment made of the effects of the limited partnership should be declared void. If it gave a preference to one creditor over another, as alleged in the complaint, it would be ; but if made for the purpose of distribution among all the creditors in the same mode as the statute requires the property of such partnerships to be distributed, it may be necessary for the plaintiff to show something more than the mere execution of the assignment, to justify the appointment of a receiver.

But I am of the opinion that this action should have been brought in the name of the plaintiff, for the benefit of himself and the other creditors. Such I understand to be the decision in Inness a. Lansing (7 Paige, 583), and such is the necessary consequence of the provisions of the statute. (Whitewright a. Stimpson, 2 Barb., 379.) In Walker a. Crain (12 Barb., 119), the court say, “ the intent of the act was, that the fund should 'be applied to the payment of the debts of the creditors without preferences, so that they should be paid in equal ratio.” This was in reference to manufacturing companies, but there the same course was contemplated by the statute.

If the assignment provided for an equal distribution among all the creditors without preference, it would hardly be carrying out the intent of this statute to declare such an assignment void, for the purpose of enabling one creditor to obtain a preference, in direct violation of the provisions of the statute intended to prevent such preferences.

The objection that this is a defect of parties is riot well taken. .The assignee is made a party, and as such, he represents all the creditors, and may take the objections at the trial.

I think the complaint should be dismissed, but with leave to the plaintiff to amend his complaint within twenty days, on payment of the costs of the term.