14 F. Cas. 502 | U.S. Circuit Court for the District of Southern New York | 1872
The only question which I deem it necessary to consider, in disposing of the motion, on the part of the assignee in bankruptcy, to confirm the report of the register disallowing the claim of Sarah King, is the question whether the limited partnership of D. J. &. W. King & Bellander, in which Sarah King was a partner, was lawfully dissolved, by the acts of the parties to it, before the time prescribed for its expiration in the certificate of its formation. If it was not so dissolved before such time, the report of the register must be confirmed.
The 24th section of the statute of New York, in regard to limited partnerships (1 Rev. St. p. 767, § 24), provides as follows: “No dissolution of such partnership by the acts of the parties shall take place previous to the time specified in the certificate of its formation, or in the certificate of its renewal, until a notice of such dissolution shall have been filed and recorded in the clerk’s office in which the original certificate was recorded, and published once in each week, for four weeks, in a newspaper printed in each of the counties where the partnership may have places of business, and in the state paper.” The question in the present case is, as to whether the notice of dissolution was published once in each week for four weeks in the state paper — the Albany Evening Journal. The notice was published in that paper, which was a paper published daily, five times, in January and February, 1869, namely, on the 11th, 21st, and 27th days of January, and on the 1st and 10th days of February. It was published in the New York Times, a newspaper published daily in the county where the partnership had its place of business, four times in January ánd February, 1869, namely, on the 12th, 19th and 26th days of January, and on the 2d day of February. No question is made as to the-publication in the latter paper.
It is contended, that the publication in the state paper was a publication once in each week for five successive weeks, in this way: The first week was from January 11th to January 17th, both inclusive, and the publication in that week was on January 11th;. the second week was from January 18th to January 24th, both inclusive, and the publication in that week was on January 21st; the third week was from January 25th to-January 31st, both inclusive, and the publication in that week was on January 27th; the fourth week was from February 1st to February 7th, both inclusive, and the publication in that week was on February 1st; the fifth week was from February 8th to-February 14th, both inclusive, and the publication in that week was on February 10th.
In support of this mode of computation, the case of Bowen v. Argall, 24 Wend. 496, is relied on. In that case the question arose on the 9th' section of the same title (1 Rev. St. p. 765, § 9), which provides as follows: “The partners shall publish the terms of the partnership when registered, for at least six weeks immediately after such registry, in two newspapers to be designated by the clerk of the county in which such registry shall be made, and to be published in the senate district in which their business shall be carried- on; and, if such publication be not made, the partnership shall be deemed general.” In that case, the notice of the terms of the partnership was published in each of the two newspapers designated, six times, namely, on the 17th and 24th days of September, and the 1st, 8th, 15th and 22d days of October, the space intervening between the day before the first day of publication and the day after the last day of publication being thirty-six days. The objection was taken, that the notice ought to have been published daily for thirty-six days, and that, at all events, there should have been six weeks between the first and last publications. From the day of the first publication to the day of the last publication was five weeks, and from the day of each publication to the day of the next succeeding publication was a space of exactly seven days, in each instance. The court held that the words, in the ninth section, “for at least six weeks,” meant “once in each week for at least six weeks,” and not a publication daily for six weeks; and that a publication in the first week immediately ensuing the registry, duly followed by a repetition for the next five weeks, was sufficient. The notice was repeated five times after the first publication, at an interval of seven days between each time. In the present case, the publication being required to be “once in