101 N.Y. 265, Stanton v. Westover

Citation:101 N.Y. 265
Party Name:ROBERT A. STANTON, as Receiver, Etc., Appellant, v. WILLIAM G. WESTOVER et al., Respondents.
Case Date:January 19, 1886
Court:New York Court of Appeals
 
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Page 265

101 N.Y. 265

ROBERT A. STANTON, as Receiver, Etc., Appellant,

v.

WILLIAM G. WESTOVER et al., Respondents.

New York Court of Appeal

January 19, 1886

Argued December 17, 1885.

COUNSEL

Page 266

John W. Church for appellant. As between a firm and its creditors the property is vested in the firm, and no individual partner has an exclusive right to any part of the joint stock until the firm debts are paid and a balance of account is struck between him and his copartners and the amount of his interest accurately ascertained. (Menagh v. Whitwell, 52 N.Y. 146, 158, 159, 161, 162, 165, 166, 167.) The equity of partnership creditors to have the partnership assets applied first to the payment of their debts is that of the partners alone, and is to be worked out through them, and they can terminate it at will. (Sage v. Chollar, 21 Barb. 596; Ketchum v. Durkee, 1 Barb. Ch. 480; Smith v. Howard, 20 How. Pr. 121; Dimon v. Hazard, 32 N.Y. 65, 80.) The firm assets transferred to O. M. Westover by W. G. Westover and those transferred by the latter to the former were charged with a trust for the payment of the firm debts, and under the circumstances their respective assignees hold them charged with the same trust. (Morss v. Gleason, 64 N.Y. 204; Menagh v. Whitwell, 52 id. 146. Goertner v. Trustees, etc., 2 Barb. 628; Burtus v. Tidball, 4 id. 571; Wilds v. Chapman, 4 Edw. Ch. 669; Pars. on Part. 253.) The voluntary assignee was apprised of Woodman's rights before he entered upon his duties, and no equities appear in his favor. His bona fides do not aid his title. (Young v. Hermans, 66 N.Y. 374; Griffin v. Marquardt, 17 id. 30.) The assignment from O. M. Westover to Jane was void under the statute. (2 R. S. 137, § 1; Van Nest v. Zoe, 1 Sandf. Ch. 4; Rockenbaugh v. Hubbell, 5 L. R. [ N. S.] 95; Wait's F. C., § 325; Planck v. Schemerhorn, 3 Barb Ch. 644; Read v. Worthington 9 Bosw. 628; Burdick v. Post, 72 Barb. 172; Nicholson v. Leavitt, 6 N.Y. 517; Oliver Lee & Co.'s Bank v. Talcott, 19 id. 149; Hyslop v. Clark, 14 Johns. 458; Grover v. Wakeman, 11 Wend. 187; Wakeman v. Grover, 4 Paige, 23; Bump, 19, 27, 263.) The fact that at the time of the transfer both parties to it were insolvent renders it illegal and void as against plaintiff, to the extent of the indebtedness of the firm to him, or the judgment creditor he represents, notwithstanding it was made

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in good faith. (Hard v. Mulligan,...

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