Legal Opinion

Harbeck v. Pupin

New York Supreme Court

Decided June 15, 1889Published

Demurrer to complaint. Henry Harbeck brought this action against Sarah Catharine Pupin and others, executors of one Agate, to charge hi-s estate with a debt of a co-partnership of which he was a member on a promissory note made by the co-partnership before his death.

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Demurrer to complaint. Henry Harbeck brought this action against Sarah Catharine Pupin and others, executors of one Agate, to charge hi-s estate with a debt of a co-partnership of which he was a member on a promissory note made by the co-partnership before his death. The complaint alleged the making of the note; the entry of a judgment by confession in favor of the plaintiff and against the members of the firm except Agate ; the issue of an execution on the judgment, and the return of the same unsatisfied. That on March 13. 1886 the said co-partner■ship liaving previously been dissolved,…

1Opinion of the Court

Ingraham, J.—[After stating the facts.]

It is clear that the complaint is demurrable, on the ground that the plaintiff has not alleged that the legal remedies against the surviving *192partners have been exhausted, unless the allegations of the complaint bring the case within section 1942 of the Code. By that section the joint debtor may make a separate composition with his creditors as therein prescribed. Such a composition discharges the debtor making it and him only. A member of a partnership can not thus compound for a partnership debt until the partnership is dissolved by consent or…

2Cases cited5 opinions

  1. Rowley v. StoddardNew York Supreme Court · 1810
  2. De Zeng v. BaileyNew York Supreme Court · 1832
  3. Irvine v. . MillbankNew York Court of Appeals · 1874
  4. Murray v. . FoxNew York Court of Appeals · 1887
  5. Saxton v. DodgeNew York Supreme Court · 1873

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