102 N.Y.S. 952 | N.Y. App. Div. | 1907
In the year 1901 a copartnership known as “ Delmonico’s ” existed for the purpose of carrying on a restaurant in the city of Mew York. . This partnership consisted of Eosa Delmonico* owning four-sixths parts; Josephine C. Delmonico, with one-sixth, and Lorenzo C. Delmonico, the remaining-one-sixth interest. The latter became the manager of the business. In 1993 it became known that Lorenzo C. Delmonico was heavily in debt,- and that he had overdrawn his account with the firm to the extent of $14,665.71. The copartnership was dissolved by mutual consent, Lorenzo C. Delmonico retiring, assigning his interest in the copartnership to Eosa and Josephine C. Delmonico in equal shares, and these two bécame copartners in the transaction of the business. At this time Eosa Delmonico owned four-fifths of the copartnership assets and Josephine C. Delmonico one-fifth, and this was the situation at the time of -th.e death of Eosa.»Delmonico.on the 24th day of March, 1904. By her will the said- Eosa Delmonico gave one-fourth of her interest in the copartnership to Lorenzo 0. Delmonico and three-fourths thereof to Josephine- C. Delmonico, and the will provides that the latter is to have •“ the controlling interest in the said business in my place or stead, and as succeeding me in the same and in such control. It is my express wish and desire, and I-hereby will and direct, that my niece, the said Josephine'Crist Delmonico,. shall have and exercise the controlling interest in the management, conduct and direction qf 'said business, and that she shall control and dispose of the same -as; and when she shall see fit, absolutely, free from any control- Or dictation of any person or persons whomsoever.”
Under the provisions of the will Josephine C. Delmonico and
In the view which wé take of this case, however,- there as no-occasion for determining whether the conduct alleged is such as to justify a removal of a testamentary trustee. It appears that at the time of the' death of Kosa Delmonico the firm was largely indebted for current bills. Josephine C. Dehmonieo/as the. sole surviving' partner, became -the legal owner of the assets of the copartnership and had the exclusive right to sell,, mortgage and dispose'-of them In the performance of her duty in closing up the affairs of the partnership, and she had a right to do this in any manner, within the limits of:good faith, that she might deem bést for' the intérests of those concerned. The representatives of Rosa Delmonico have no ■ legal interest in such assets' and no legal right to interfere in their administration so long as the. survivor is prosecuting the business'df closing up the estate and applying its proceeds- to the payment of the firm
We are of opinion that, under the rule recognized in Matter of Scott (49 App. Div. 130), all of the questions presented by the record are open to review here, and that upon the record as shown by the pleadings, the petitioners are not entitled to the relief 'demanded for the reasons above suggested. Moreover, upon the facts placed before us, we are unable to discover sufficient grounds
The decree appealed from should be reversed,, with costs, and the proceeding dismissed, with costs.
Ingraham and LauGhlin, JJ., concurred; Patterson, P. J.,- and Houghton, J., concurred in result.
Order reversed, with costs, and proceeding dismissed, with costs. Order filed.