Cheever v. Brown , 36 N.Y. St. Rep. 131 ( 1890 )

Barrett, J.

I concur. The question was not whether, upon a liquidation of the copartnership affairs, Mr. W. H. Guión would have been found to be indebted to his copartners, but whether he was actually indebted to his own firm in such a form that the receiver of that firm could recover against him or his assignee. This question seems to have been ignored; and Mr. W.-H. Guión, as his firm’s receiver, proceeded before the referee as though it were only necessary to show his individual liability for some specific sum. upon a firm accounting. But, even upon this theory, proof of the essential facts was lacking. His individual, creditors certainly had a right to strict proof of his indebtedness to his firm. Their dividend for his individual estate should not be reduced by mere estimates of the partners in the firm as between themselves, nor yet by the book-keeper’s statements as to the supposed condition of the firm. I think with Mr. Justice Bartlett that the referee was right in rejecting this claim.