Geitner v. United State Fidelity & Guaranty Co. ( 1929 )

The insurance policy sued on insures Charles Harms and Paul F. Rehberg as a copartnership.

The complaint in the action in which judgment was recovered by plaintiff against Harms and Rehberg, does not allege a cause of action against the defendants as partners. It alleges that the automobile was being operated by the defendant Harms for and on behalf of the defendant Rehberg. This allegation does not import a partnership use of the automobile by the defendant Harms at the time of the accident. The policy protects Harms and Rehberg from loss by reason of automobile accidents for which their partnership is liable and protects them to that extent individually as members of the firm but not otherwise. (Hartigan v. Casualty Co. of America, 227 N.Y. 175.) As no judgment has been obtained against the insured on a partnership liability, the plaintiff may not recover under Insurance Law (Cons. Laws, ch. 28), section 109.

We deem it unnecessary to decide whether execution may be levied on the partnership property on a judgment recovered against all the partners jointly on a non-partnership debt or liability. Section 51 (c) of the Partnership Law (Cons. Laws, ch. 39) provides merely that a partner's interest (not the interest of all the partners) in specific partnership property is not subject to attachment or execution, except on a claim against the partnership. (Cf.Davis v. Pres., etc., D. H. Canal Co., 109 N.Y. 47.)

The judgment should be affirmed, with costs.

CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur; HUBBS, J., not sitting.

Judgment affirmed.