Woarms v. Bauer

New York Court of Common Pleas

Woarms v. Bauer

11 N.Y.S. 59, 16 Daly 333, 32 N.Y. St. Rep. 331, 1890 N.Y. Misc. LEXIS 603

DecidedJune 6, 1890

StatusPublished

This text of 11 N.Y.S. 59 (Woarms v. Bauer) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Woarms v. Bauer, 11 N.Y.S. 59, 16 Daly 333, 32 N.Y. St. Rep. 331, 1890 N.Y. Misc. LEXIS 603 (N.Y. Super. Ct. 1890).

Pincite

Opinion

Daly, J.

The only question in the case is whether the personal representatives of a deceased partner may be joined as parties with the surviving partners in an action upon a debt due the original copartnership where such personal representatives are directed by their testator, in his last will and testament, to continue with the survivors the business of the copartnership pursuant to the provisions of the original articles, which stipulated that, in the event of the death of the testator, his interest as partner should survive, and' [60]*60accrue to and be continued by his personal representatives and the other survivors. There seems to be no possible objection to such a course. While the rule is that in the event of the death of a partner the survivors “succeed primarily to all the rights and interest of the partnership, and have the entire control of all the partnership property, and the sole right to collect partnership d.ues, ” (Voorhis v. Child, 17 N. Y. 354,) yet the rule is not applicable where, by agreement among the copartners, the interest of any one of them who survives, accrues to and is continued by his personal representatives as ■copartners. It is perfectly competent for copartners to make such an agreement, and for one of them to direct in his last will and testament that it be carried out by his personal representatives, and for the surviving partners and such representatives to act under such agreement. Lane v. Arnold, 11 Daly, 293. When such personal representatives are admitted by the other copartners to continue the business as succeeding to the rights and interest of the deceased, the survivors thereby waive their right to the exclusive control of the copartnership property, and their succession to all the rights and interests of the partnership, and necessarily waive their exclusive right to collect the copartnership dues. The latter right to collect and sue for the partnership debts grows out of the exclusive right to possession and control of the copartnership effects; and, if the right be waived, and the representatives of a deceased copartner are admitted to share in it, they are also admitted to the right of collection and suit. The question is one wholly in the discretion of the surviving partners, and the debtors of the firm have no ground ■of complaint. The defendant, therefore, cannot object to the joining of the representatives of the deceased partner with the surviving partners in this action, and the only question litigated in the court below was properly disposed of.

Upon this appeal the point is made that, as the trial was upon the pleadings, the defendant should have had leave to amend as upon the decision of the demurrer, and that the judgment should be reversed. No request for leave to amend was made in the city court, and there is nothing for us to review in that respect. The only point submitted to the court at the trial was the alleged misjoinder of parties plaintiff, the denials in the answer having been apparently waived. Had an application for leave to amend been asked for it would have been granted. It seems now to be suggested for the first time, without the city court having had the opportunity to pass upon it. As •it was a matter within the discretion of that court, the application to us cannot be entertained, and the judgment cannot be reversed in order to permit such application to be made in the city court. The judgment should be affirmed, with costs. All .concur.

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Daly, J.

The only question in the case is whether the personal representatives of a deceased partner may be joined as parties with the surviving partners in an action upon a debt due the original copartnership where such personal representatives are directed by their testator, in his last will and testament, to continue with the survivors the business of the copartnership pursuant to the provisions of the original articles, which stipulated that, in the event of the death of the testator, his interest as partner should survive, and' [60]*60accrue to and be continued by his personal representatives and the other survivors. There seems to be no possible objection to such a course. While the rule is that in the event of the death of a partner the survivors “succeed primarily to all the rights and interest of the partnership, and have the entire control of all the partnership property, and the sole right to collect partnership d.ues, ” (Voorhis v. Child, 17 N. Y. 354,) yet the rule is not applicable where, by agreement among the copartners, the interest of any one of them who survives, accrues to and is continued by his personal representatives as ■copartners. It is perfectly competent for copartners to make such an agreement, and for one of them to direct in his last will and testament that it be carried out by his personal representatives, and for the surviving partners and such representatives to act under such agreement. Lane v. Arnold, 11 Daly, 293. When such personal representatives are admitted by the other copartners to continue the business as succeeding to the rights and interest of the deceased, the survivors thereby waive their right to the exclusive control of the copartnership property, and their succession to all the rights and interests of the partnership, and necessarily waive their exclusive right to collect the copartnership dues. The latter right to collect and sue for the partnership debts grows out of the exclusive right to possession and control of the copartnership effects; and, if the right be waived, and the representatives of a deceased copartner are admitted to share in it, they are also admitted to the right of collection and suit. The question is one wholly in the discretion of the surviving partners, and the debtors of the firm have no ground ■of complaint. The defendant, therefore, cannot object to the joining of the representatives of the deceased partner with the surviving partners in this action, and the only question litigated in the court below was properly disposed of.

Upon this appeal the point is made that, as the trial was upon the pleadings, the defendant should have had leave to amend as upon the decision of the demurrer, and that the judgment should be reversed. No request for leave to amend was made in the city court, and there is nothing for us to review in that respect. The only point submitted to the court at the trial was the alleged misjoinder of parties plaintiff, the denials in the answer having been apparently waived. Had an application for leave to amend been asked for it would have been granted. It seems now to be suggested for the first time, without the city court having had the opportunity to pass upon it. As •it was a matter within the discretion of that court, the application to us cannot be entertained, and the judgment cannot be reversed in order to permit such application to be made in the city court. The judgment should be affirmed, with costs. All .concur.

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Bluebook (online)

11 N.Y.S. 59, 16 Daly 333, 32 N.Y. St. Rep. 331, 1890 N.Y. Misc. LEXIS 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woarms-v-bauer-nyctcompl-1890.

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