Postman v. Rowan

Appellate Terms of the Supreme Court of New York

Postman v. Rowan

65 Misc. 50, 119 N.Y.S. 248

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 15, 1909

StatusPublished

Cited by3 cases

This text of 65 Misc. 50 (Postman v. Rowan) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Postman v. Rowan, 65 Misc. 50, 119 N.Y.S. 248 (N.Y. Ct. App. 1909).

Pincite

Opinion

Lehman, J.

. The only issue in this case is whether an assignment made by one member of a firm of all the assets of the firm constitutes a valid 'assignment .of the partnership.

It appeared upon the trial that the assignee was a creditor of the firm; and the trial justice held, on.the authority of Mabbett v. White, 12 N. Y. 4.42, and Bulger ,v. Rosa, 119 id. 459, that an assignment by one partner of the entire assets of the partnership without the consent of the other members of the partnership transfers title to the partnership property. An examination of those cases shows that they have decided only that one partner may transfer the partnership effects directly to a creditor of the firm, without the knowledge or consent of his copartner, in payment of, or perhaps for the security of, a debt due from the partnership. In this case, however, the assignment was a general assignment in trust for all the creditors and not in payment of, or as security for, a debt due to him. In the case of Klumpp v. Gardner, 114 N. Y. 153, 157, the court, per Haight, J., said: “ The rule appears to he unquestioned, and is to the [51]*51effect that one or more members of a copartnership firm, cannot execute a general assignment for the benefit of creditors, with or without preferences, without the consent of the other member or members of the firm. But if it appeal’s from the acts or declarations of such member or members, either before or subsequent to the assignment, that he or they assented to making it, or that it was made by his or their authority, it is valid.”

The evidence as to the consent of the other partner is conflicting, but the trial justice has not considered or determined this question of fact.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Lehman, J.

. The only issue in this case is whether an assignment made by one member of a firm of all the assets of the firm constitutes a valid 'assignment .of the partnership.

It appeared upon the trial that the assignee was a creditor of the firm; and the trial justice held, on.the authority of Mabbett v. White, 12 N. Y. 4.42, and Bulger ,v. Rosa, 119 id. 459, that an assignment by one partner of the entire assets of the partnership without the consent of the other members of the partnership transfers title to the partnership property. An examination of those cases shows that they have decided only that one partner may transfer the partnership effects directly to a creditor of the firm, without the knowledge or consent of his copartner, in payment of, or perhaps for the security of, a debt due from the partnership. In this case, however, the assignment was a general assignment in trust for all the creditors and not in payment of, or as security for, a debt due to him. In the case of Klumpp v. Gardner, 114 N. Y. 153, 157, the court, per Haight, J., said: “ The rule appears to he unquestioned, and is to the [51]*51effect that one or more members of a copartnership firm, cannot execute a general assignment for the benefit of creditors, with or without preferences, without the consent of the other member or members of the firm. But if it appeal’s from the acts or declarations of such member or members, either before or subsequent to the assignment, that he or they assented to making it, or that it was made by his or their authority, it is valid.”

The evidence as to the consent of the other partner is conflicting, but the trial justice has not considered or determined this question of fact.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Bluebook (online)

65 Misc. 50, 119 N.Y.S. 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/postman-v-rowan-nyappterm-1909.

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