Seligman v. Friedlander

138 A.D. 784, 123 N.Y.S. 583

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 1910
• Status: Published

Opinion

McLaughlin, J.:

Action to recover for services alleged to have been rendered to the firm of A. Friedlander & Co., which was composed of defendant Friedlander and Albert S. Faber and Edwin Potosky. The action was Commenced in January, 1908, by service of the summons on Friedlander, who died in June, 1909. Faber and Potosky were never served with the summons, and on plaintiff’s application an order was entered discontinuing the action as to them. After the death of Friedlander, a motion was made to revive and continue the action in the name of his executors, and for leave to serve a supplemental complaint. The motion was denied and the appeal is from such order. The motion to revive the action was apparently denied upon the ground that the plaintiff should proceed against the surviving partners. This might be correct if the .obligation of the partners were joint, but it is not when the obligation of the partners is joint and several. In the latter case a plaintiff has the legal right to proceed against the representatives of the deceased defendant if he so desires. It was never the law that where a joint and several obligor dies his estate cannot be proceeded against. Under section 758 of the Code of Civil Procedure the court in such case might order a severance of the action so that it could proceed separately against the estate and the survivors. ■ (Potts v. Dounce, 173 N. Y. 335; County of Erie v. Baltz, 125 App. Div. 144.)

Here the obligation of the partners was joint and several. The Partnership Law (Consol. Laws, chap. 39 [Laws of 1909, chap. 44], § 6; formerly Gen. Laws, chap. 51 [Laws of 1897, chap. 420], § 6) expressly provides that “ every general.partner is liable to third persons for all the obligations of the partnership jointly and severally with his general copartners.” The statute fixes the liability, and irrespective of what may have been thought to have been the law heretofore (Leggat v. Leggat, 79 App. Div. 141; affd. on opinion below, 176 if. Y. 590), if language means anything, then general partners arq jointly and severally liable to the creditors of the firm. If severally liable, then each could have been sued separately at law, and in case of death the action could be revived against the personal representatives of the deceased defendant. (Douglass v. Ferris, 138 N. Y. 192.)

I am of the opinion that the motion should have been granted for another reason. The fact is not disputed that the Statute of Limitations would prevent the successful prosecution of an action against Faber and Potosky. That being so, the representatives of Fried-lander should have been substituted, and this irrespective ¿f the. provisions of the statute making general partners jointly and sev-. erally liable. Hentz v. Havemeyer (132 App. Div. 56) is directly in point.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. ■ •

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.