94 N.Y.S. 151 | N.Y. App. Div. | 1905
This appeal is from a decree of the surrogate of Kings county dismissing a petition for the removal of Margarethe Marx, sole executrix of Frederick Marx, deceased, and for the closing' of the business of Marx <& Rawolle on' January 1, 1905.
Marx and Rawolle became copartners in 1870, under articles which expired in 1900. In 1900 .they executed articles providing for a continuance until 1905. The articles are long and specific." They contemplate the death of either or both partners during the term, and provide for a continuance in either event. Both parties-died during that period. Therefore, the section of the articles-applicable is the 14th, which provides that “ The death of both of the parties hereto before January 1st, 1905, shall not operate as a dissolution of said copartnership, but the same shall be carried on until the 1st day of January, 1905, under the exclusive control and direction of George F. Henry, Henry C'alder and such other person or persons as may be appointed by the legal representatives of the parties, but without other control or interference by the executors, administrators or legal representatives of either of the parties. The salary of said Henry Calder to be charged to general expense account of the business. The capital shall remain unimpaired, except What may be withdrawn by mutual consent of the legal representatives.” The article contains further provisions, which permit either an agreement between the widows of the partners, or, if there be but one- or none, between the legal representatives as the case may be, for a.continuance in the interest of either estate Upon a purchase of the interest of the.other, and which also sanction an agreement by the same parties for a termination of the business prior to January 1,1905, and a winding up.
Upon June 1, 1903, Marx, as executor of Frederick Marx, of the first part, and Rawolle and Buchanan, as executors of Frederick Rawolle, of the second part, reciting the 14th section and stating
We think that he is right. The definite period first determined by the partners in the articles expired on January 1, 1905. The articles did not alone contemplate a continuance of the copartnership by the partners until that period, but the scheme expressly pro- ■ vided for. a continuance of the business as the copartnership until then, even if one or.both should die meanwhile. The.writing is not limited to any section of the articles. Its terms are not restricted to a continuance by the parties themselves in distinction to the.continuance therein otherwise provided for. ■ The parties extend “ the
Again, in October, 1901, the partners executed a modification of these articles which related exclusively to the conduct of the business after the death of one or both of the partners, which reads: “ The Agreement of Copartnership between the undersigned, dated May 19th, 1900, and extended on January 31st, 1901, is hereby modified and amended as follows.” (The italics are mine.) This not only indicates that the copartners considered that the writing of January 31, 1901, applied to the entire agreement, but suggests the query that if such writing of January 31, 1901, referred only to a continuance by both partners, if living, why should the parties have thus referred to such extension in a modification relating only to the provisions for a continuance after the death of either or of both of the partners ? Further, the testator of this executor wrote in his will: “ A copartnership has existed for more than thirty years between myself and Frederick Rawolle under the firm name of Marx & Rawolle, which has lately been- renewed for a further term, and in order that our partnership agreement and every modification thereof and any agreement relating thereto may have full force, I hereby direct my said executors in all respects to carry out the provisions of the said agreement so far as the same may be legally done.” This indicates that the testator thought that the agreement of January thirty-first affected the partnership agreement in toto, for there is none other unless we consider the modification which I have referred to as within the descriptive term “ any agreement.” Plainly the testator did not intend to do this, inasmuch as he separately describes that by its apt term. To exclude the agreement of January thirty-first would be to exclude every “ agreement,” and, hence, to excise the expression “ any agreement relating thereto.” Again, if the only “ agreement,” i. e., that of January thirty-first, only affected the partnership of the living partners, I am at a loss
In the absence of any evidence, to the contrary, we think that the writing of January 31, 1901, Was a continuance of the entire partnership agreement until January 1, 1906, and hence an exten-. sion of the period, contemplated by the 14th section until January 1, 1906. The general rule is that sti-ch a continuance applies to all the article's., (Pars. Part.
The decree should be affirmed, with costs.
Hirschberg, P. J., Bartlett, Woodward and Miller, JJ., concurred.
Decree of the Surrogate’s Court-of Kings county affirmed, With costs.
See 4th ed., § 165; ;and note x.— [Rep;