Kohler v. Lindenmeyr

• Decision Date: 20 January 1892
• Citation: 129 N.Y. 498,29 N.E. 957
• Parties: KOHLER et al. v. LINDENMEYR et al.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 498

29 N.E. 957

KOHLER et al.

v.LINDENMEYR et al.

Court of Appeals of New York.

Jan. 20, 1892.

Appeal from supreme court, general term, second department.

Action by Elsie Kohler and others against John Lindenmery and another. Defendant Lindenmeyr appeals from a judgment for plaintiffs on defendant's exceptions ordered to be heard at the general term in the first instance. Reversed.

Lucien Birdseye, for appellant.

Samson Lachman, for respondents.

ANDREWS, J.

The certificate of the formation of the limited partnership of P. Lenk & Co., in which the defendant John Lindenmeyr was named as one of the special partners, stated that Lindenmeyr had contributed $20,000 of the capital, and that the partnership was to commence on the 16th of November, 1885. The certificate was dated November 6, 1885, but was not acknowledged until November 11, 1885; on which latter day Peter Lenk, one of the general partners, made and filed with the certificate an affidavit that the sums specified in the certificate to have been contributed by the special partners had been actually and in good faith paid in cash. The plaintiff sold goods to the firm of P. Lenk & Co., after the formation of the special partnership, and, the debt not having been paid, they brought an action against the general partners, and recovered judgment therein for their debt. They subsequently brought this action against the defendant Lindenmeyr and Otto Huber, the special partners, to charge them as general partners, on the ground that the contribution of capital made by them to the firm was not made in cash. It is claimed as to Lindenmeyr (the only appellant here) that his contribution of $20,000 was made by crediting him with $20,000 loaned by him to the pre-existing firm of P. Lenk & Co., in August and September, 1885, which firm was composed of the same persons who were members of the succeeding firm, with the exception of Lindenmeyr. The complaint alleges that when the former action was brought the plaintiffs were ignorant of the connection of Lindenmeyr and Huber with the firm of P. Lenk & Co. The plaintiffs, for the purpose of establishing the faisity of the affidavit that Lindenmeyr paid in, in cash, his capital in the new firm, were permitted to show entries on the books of the prior firm of P. Lenk & Co., crediting him with two loans made to that firm in August and September, 1885, aggregating $20,000, and a subsequent entry made on or about November 6, 1885, in the same books, crediting a similar sum to his capital account of the new firm. Without going into details, it is sufficient to say that the entries admitted, if competent against Lindenmeyr, permit an inference that Lindenmeyr's...