Fogarty v. Cullen
The Superior Court of New York City
Appeal by defendant from judgment in favor of plaintiff •entered upon the report of a referee. Action to recover against the representative of a deceased partner for services rendered to their firm, upon the allegation that the surviving partners are "insolvent.
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Appeal by defendant from judgment in favor of plaintiff •entered upon the report of a referee. Action to recover against the representative of a deceased partner for services rendered to their firm, upon the allegation that the surviving partners are "insolvent. The defense was a denial of the contract between plaintiff ■and the firm, and a claim that defendant’s intestate was discharged from liability owing to an alleged agreement made with the survivors, whereby the money due plaintiff was contributed by him as capital to the co-partnership newly formed by said survivors. The following…
1Opinion of the Court
Edward M. Shepard, Referee.
—After the death of Mr. Freneau, the two surviving members of the firm, Messrs. Hawkins & Brainerd alone were at law liable to the plaintiff (Waydell v. Luer, 3 Den. 410, per Lott, S.). The plaintiff had merely an equitable recourse to the Freneau estate upon his showing either that the survivors were insolvent in fact, or that he had exhausted his legal remedy against them (Lawrence v. Trustees, 3 Den. 577; Van Riper v. Poppenhausen, 43 N. Y. 68; Pope v. Cole, 55 N. Y. 124). The Freneau estate was therefore a surety to the plaintiff for the payment of his debt by…
2Cases cited11 opinions
- Colgrove v. . TallmanNew York Court of Appeals · 1876
- Law v. MerrillsCourt for the Trial of Impeachments and Correction of Errors · 1830
- Voorhis v. . Childs'New York Court of Appeals · 1858
- Waydell v. LuerCourt for the Trial of Impeachments and Correction of Errors · 1846
- Millerd v. . ThornNew York Court of Appeals · 1874
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