Geitner v. United States Fid. & Guar. Co.
| Decision Date | 11 June 1929 |
| Parties | GEITNER v. UNITED STATES FIDELITY & GUARANTY CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Elsa B. Geitner against the United States Fidelity & Guaranty Company. From a judgment of the Appellate Division (225 App. Div. 451, 233 N. Y. S. 378) reversing as a matter of law a judgment of the Trial Term directed by the court in favor of plaintiff, a jury being waived, and dismissing the complaint, plaintiff appeals.
Affirmed.
Appeal from Supreme Court, Appellate Division, Fourth department.
Lafay C. Wilkie, of Buffalo, for appellant.
S. H. Millener, of Buffalo, for respondent.
The insurance policy sued on insures Charles Harms and Paul F. Rehberg as a copartnership.
The complaint, in the action in which judgment was recovered by plaintiff against Harms & Rehberg, does not allege a cause of action against the defendants as partners. It alleges that the automobile was being operated by the defendant Harms for and on behalf of the defendant Rehberg. This allegation does not import a partnership use of the automobile by the defendant Harms at the time of the accident. The policy protects Harms & Rehberg for loss by reason of automobile accidents for which their partnership is liable and protects them to that extent individually as members of the firm but not otherwise. Hartigan v. Casualty Co. of America, 227 N. Y. 175, 124 N. E. 789. As no judgment has been obtained against the insured on a partnership liability, the plaintiff may not recover under Insurance Law (Consol. Laws, ch. 28) § 109.
We deem it unnecessary to decide whether execution may be levied on the partnership property on a judgment recovered against all the partners jointly on a nonpartnership debt or liability. Section 51, subd. 2(c) of the Partnership Law (Consol. Laws, c. 39) provides merely that a partner's interest (not the interest of all the partners) in specific partnership property is not subject to attachment or execution, except on a claim against the partnership. Cf. Davis v. Delaware & H. Canal Co., 109 N. Y. 47, 15 N. E. 873,4 Am. St. Rep. 418.
The judgment should be affirmed, with cost.
HUBBS, J., not sitting.
Judgment affirmed.
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