Ganson v. Lathrop , 25 Barb. 455 ( 1857 )

By the Court, Welles, J.

The appellants’ counsel attempts to distinguish this case from that of Kirby v. Carpenter, (7 Barb. 373,) and contends that it should not be governed by the principle of that case in regard to the distribution of the assets of a deceased partner, on the ground that, as he contends, the evidence of the claim of the appellants against the firm of J. Ganson <fc Co., of which the testator was a member, consists of promisspry notes of that firm which were, in terms, joint and several, although subscribed by the firm name of J. Ganson <fc Co. Assuming that to have been the form of the notes, it does not, in our judgment, change the principle. In the first place, I doubt very much whether it is within the general implied powers of one partner to bind his copartner in an obligation which shall make him severally liable to a creditor, so as to deprive such copartner of a defense in abatement for the non-joinder of his co-debtor as defendant, when prosecuted at law upon the obligation. If he knew of, and consented to, such obligation at the time, or ratified it afterwards, the ease would probably be different. But even in such a case, it would still be a partnership debt and the creditor would be, none the less, a partnership creditor. The rule as stated in Kirby v. Carpenter, (supra,) is as follows: “ It is a settled rule in equity that in marshaling the assets of a deceased partner, the partnership property is to be first applied to the payment of partnership debts, and until such debts are all. paid, no creditor of the individual partner is entitled to any share in the assets of the partnership.” Also, that “ the separate creditors of the deceased partner are entitled to priority over the creditors of the partnership, in respect to the separate estate of the deceased partner.” We think this rule is applicable to the present case, and the decision of the surrogate being in accordance with it, his decree should be affirmed with costs, to be paid by the appellants."

[Monroe General Term, September 7, 1857.

Ordered accordingly.

Johnson, T. R. Strong and Welles, Justices.]