Martin v. Mallery

Learned, P. J. This is an appeal from an order directing the sheriff to pay on the aforesaid judgment moneys raised by him from a sale on execution upon a judgment in favor of William H. Hollister against Franklin Mallery. The plaintiff, Martin, commenced an action on a promissory note made ¡by Franklin Mallery, and indorsed by Stephen Holland and Rachel Mallery. In that action he recovered judgment against Franklin Mallery, May 13, 1890, and against Stephen Holland and Rachel Mallery, June 10,1890. An execution on the judgment against Franklin Mallery was issued June 23, 1890, and returned nulla bona, August 21, 1890. An execution upon the judgment against the other two defendants was issued June 23, 1890, and returned nulla bona, August 23,1890. This execution is in form against each and all of the defendants. William B. Hollister commenced an action against Franklin Mallery and Stephen Holland, and recovered a judgment against Franklin Mallery, June 20, 1890, on which he issued an execution that day, 6y virtue of which execution the plaintiff levied on the interest of Franklin Mallery in the “Panama Store.” This execution was satisfied by sale, July 8, 1890. Martin, the above-named plaintiff, moved, upon notice dated the 18th of July, an affidavit, and on the judgment rolls and executions in his action, to require the plaintiff to pay his execution before that of Hollister, which motion was granted July 29th, and Hollister appeals. The affidavit of Martin avers that his judgment was for a debt owing by the firm of Mallery & Holland, composed of Franklin Mallery and Stephen Holland, and that the judgment of Hollister was against Franklin Mallery alone. The answering affidavit of Hollister denies that Martin’s judgment was on a firm «debt, and refers to the complaint in Martin’s action. He avers that his own debt was for goods sold to Franklin Mallery and Stephen Holland as partners prior to their dissolution; that they disolved partnership about May 27,1890; and that Franklin Mallery succeeded to all the interest of the firm. It is plain that the judgment roll in Martin’s action does not show a partnership debt. It is on a note of Franklin Mallery, indorsed successively by Stephen Holland and Rachel Mallery. All of the defendants were served the same day, but the plaintiff severed his judgments, instead of taking a judgment against them as joint debtors. He even severed as against Franklin Mallery and Stephen Holland. Martin, however, relies on the doctrine of Saunders v. Reilly, 105 N. Y. 12, 12 N. E. Rep. 170; and of Davis v. Canal Co., 109 N. Y. 47, 15 N. E. Rep. 873. He urges that, even if his debt was mot a partnership debt, yet, as it was a debt owing by all the partners, his execution had priority over an execution previously levied against one partner. We think that those cases do not sustain his position, and, indeed, are rather contrary to it. In the latter ease the general term had given priority io a partnership debt owing by the partners individually. But the court of 601 appeals reversed that decision, and held that a prior judgment against the several partners had priority over a later judgment on a prior debt. The other case is similar. Under these cases Martin’s execution against both partners individually, if first levied, would have taken the firm property, (assuming that the property still belonged to the firm,) in preference to a subsequent execution against the firm. But that is not this case. Martin’s execution is the subsequent, and Hollister’s the prior. Martin, therefore, attempts to assert that benefit of being a creditor of the firm over individual creditors which was denied in those cases. But there is another view which may make it unnecessary to decide this last point. Hollister alleges that about May 27th Franklin Mallery bought out Stephen Holland, and succeeded to all the interests of the firm.' There is nothing to contradict this. Xow, in Saunders v. Reilly, ut supra, at page 18, 105 N. Y., and 173, 12 N. E. Rep., this subject is discussed; and it was held, on the authority of Stanton v. Westover, 101 N. Y. 265, 4 N. E. Rep. 529, that such a purchase vests the purchasing partner with the absolute title to the corpus of the partnership property, as if it had always belonged to him. How this rule may be qualified in the case of fraud we need not inquire. Under that rule, the purchase from Holland by Mallery gave him the absolute title; and necessarily the execution against him, being first levied, must be first paid. So far as the equity of the case goes, Hollister’s affidavit shows that his judgment was for a firm debt; so that he is committing no injustice when he levies on property formerly belonging to the firm, and now, since Mallery’s purchase, belonging to him.We think the order should be reversed, with $10 costs and printing disbursements, and motion denied, with $10 costs. All concur.