Hauptmann v. Hauptmann

O’Brien, J. : It was decided by the learned judge at Special Term that the several parcels of land involved in this action were copartnership property. As the plaintiff did not appeal from this decision, she cannot contend in this court that some of the property was not partnership property. The relief which she obtained was upon an adjudication that it was all partnership property. The judge correctly said in his opinion that “ partnership real estate retains its character as realty with all the incidents of that species of property, except that [199] ■each share is impressed with a trust implied by law in favor of the ether partner, that so far as is necessary it shall be first applied to the adjustment of partnership debts and the payment of what may be found due from one partner to tlie other. To that extent only is the character of the property deemed to be changed into personalty.” (Darrow v. Calkins, 154 N. Y. 503.) Hence the learned judge concludes that plaintiff is entitled to “ an inchoate right of •dower in the property in question, subject only to the primary ■claims growing out of the partnership relation.” This legal conclusion we do not regard as sound. The learned judge overlooked the facts here shown to exist, viz., ■that prior to the 31st of July, 1901, when the agreement between plaintiff and her husband was made, and down to the time of the •trial, the partnership affairs had not been settled, the partnership was still existing, and there were claims of creditors to be paid out of the partnership assets. The decisions are uniform in holding that a partner’s interest in the firm realty stands upon the same footing with his interest in the personalty, and is simply the right in what may remain after adjusting the partnership affairs. There seems to be a uniform line of decisions and text writers in favor of the proposition that there is no right of dower, inchoate or absolute, in the copartnership real estate during the continuance of the copartnership, nor after its dissolution, while the firm creditors remain unpaid and the equities of the partners unadjusted. (Delmonico v. Guillaume, 2 Sandf. Ch. 366 ; Coster v. Clarke, 3 Edw. Ch. 428, 438 ; Sage v. Sherman, 2 N. Y. 417 ; Riddell v. Riddell, 85 Hun, 482 ; Dawson v. Parsons, 10 Misc. Rep. 428 ; 2 Kerr Real Prop. §§ 952, 986 ; 1 Scribner Dower [2d ed.], 575 ; 1 Bates Part. § 290 ; Pars. Part. [4th ed.] 359, 362, note.) The Special Term, therefore, went too far in adjudging that plaintiff was entitled to an inchoate right of dower in this partnership property. Whether she will or will not have any dower right in any of this property will depend on whether or not, at the dissolution of the copartnership and after the payment of the partnership debts, her husband has any interest left in the real estate, and to that extent, and to that extent only, she will have a dower interest in these [200] lands. In setting aside, therefore, the agreement of separation and the deed to Bottomley as null and void, the Special Term gave to plaintiff all the relief to which she was entitled, because it placed her in the same position she was in when these instruments were executed by her, and will leave her ultimate rights in the real estate to be determined by the final outcome of the copartnership dealings." We think, too, that the granting of an extra allowance was error, because there was no basis for it. The subject-matter of the action, as bearing upon the question of an extra allowance, was the value of plaintiff’s dower right. An allowance can only be granted where the subject-matter of the action has a value and such value is shown. (Heilman v. Lazarus, 90 N. Y. 672, 674 ; Conaughty v. Saratoga County Bank, 92 id. 401, 406.) As the value of the dower interest could not at the time of the trial be determined, because the property was subject to unascertained claims against the partnership, there was not, as stated, any basis for the extra allowance. The judgment should accordingly be modified by striking out the provisions awarding plaintiff an inchoate right of dower and an extra allowance, and as so modified it should be affirmed, with costs and disbursements of this appeal to the appellants. Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred. Judgment modified as directed in opinion, and as modified affirmed with costs and disbursements of appeal to appellants.