In re Dunn

• Decision Date: 25 September 1931
• Citation: 53 F.2d 516
• Parties: In re DUNN.
• Court: U.S. District Court — Eastern District of New York

53 F.2d 516 (1931)

In re DUNN.

District Court, E. D. New York.

September 25, 1931.

Sweet, Lefenfeld & Sweet, of New York City (Irving Sweet, of New York City, of counsel), for petitioning creditor.

Edgar T. Beamish, of Brooklyn, N. Y., for Samuel Black, administrator.

MOSCOWITZ, District Judge.

This is a motion made by the petitioning creditor to strike out the answer interposed by the administrator of the estate of Robert Wagner, deceased, and that James F. Dunn individually, and as sole surviving partner of the copartnership formerly known as Dunn & Wagner, the alleged bankrupts herein, be adjudicated a bankrupt upon default in pleading and upon consent to an adjudication filed by the surviving partner Dunn.

An answer has been interposed by Samuel Black as administrator of Robert Wagner, deceased. Robert Wagner, the deceased, died before the filing of the petition in bankruptcy. An administrator of a deceased partner, as such, cannot plead to a petition in bankruptcy against the surviving partner.

Section 18, subd. b, of the Bankruptcy Act (11 USCA § 41(b), provides: "(b) The bankrupt, or any creditor, may appear and plead to the petition within five days after the return day, or within such further time as the court may allow." Under section 18, subd. b, the only ones permitted to file an answer are the bankrupt and a creditor. The administrator of the deceased partner is neither.

Under the laws of the state of New York, upon the death of one partner the title to the assets or property of the partnership is in the surviving partner as legal owner. In Costello v. Costello et al., 209 N. Y. 252, at page 259, 103 N. E. 148, 151, Judge Collin said: "The death of the testator dissolved the firms, and the interest passed to his executors. The title to the assets or property interests of the firms was thereafter in the surviving partners as legal owners, and not as trustees in the strict sense of that term although the law imposed upon them certain obligations of a fiduciary nature. The title to partnership property is not in the individual members of the firm, so that either may assign or transfer to another an undivided share in any specific articles, but it is in the firm as an entirety, subject to the right of the partners to have it applied to the payment of the debts of the firm and the equities of the partners, and surviving partners succeed to the exclusive possession and control of the assets and the right, within the limits of good faith, of disposing of the assets and closing the partnership affairs. Williams v. Whedon, 109 N. Y. 333, 16 N. E. 365, 4 Am. St. Rep....