Spiess v. Rosswog

63 How. Pr. 401, 16 Jones & S. 135

• Court: The Superior Court of New York City
• Decided: April 15, 1882
• Status: Published

Opinion

Sedgwick, C. J.

The fact in this case which the learned •counsel for the respondents argues distinguishes it from those cases in which the partner, taking a renewal of the partnership leases, has been held a trustee of the firm, is that the defendant Constantine Eosswog obtained them after the firm was dissolved. This dissolution did not annul or change those .relations between the parties which are the basis of the obligation in such cases. After the dissolution the original leases .remained partnership property for the purpose of liquidation. 'The obligation of each partner to deal with them, not for .his individual benefit but for the common or joint interest, remained. The trust as to the use of the partnership property remained attached to these leases, as part of their value was the so-called expectation of renewal. This is deemed so .actual and vital that when a new lease is had it is considered to be a graft upon the old. If there had been in the old lease .a covenant for renewal the defendant could not defend his ■taking the benefit of that individually, any more after than before the dissolution, while it remained the subject of division or disposition between the parties. The parties were not mere tenants in common when sometimes each may act for himself, as it has been pointed out; there were mutual obligations extrinsic of the mere nature of the tenancy. Indeed, in looking at the case it appears that the title to the térm was not nominally in the individuals, but in the firm of Spiess & Rosswog. The influence of this becomes stronger when the relation of the firm leases to the good will of the business is considered. The good will was an asset of the firm and to be disposed of for the common benefit of the partners. It substantially was the probability that the customers of the old firm would resort to the successors of that firm. The value of the good will would be materially affected by the successors of the firm being able, or not being able, to do the business in the same premises. It is proper, then, that the expectation of renewal should remain with the power of disposition of the good will, and that neither party should sever them for his own interest, or if he do obtain the new lease he should hold it for the firm that the two may be disposed of together. On the argument nothing was placed on the fact that the new leases were to the son of Constantine Rosswog and the latter. The rights of the parties were not affected by that. For these reasons I am of the opinion that the judgment should be reversed and a new trial ordered, with costs of appeal to appellant to abide event.

Freedman, J., concurs.