| NY | Dec 13, 1887
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *509 The plaintiff, claiming to be a creator of Sam. H. Miller and Jesse E. Folk, after service of the summons on the defendant Folk, recovered judgment against them as joint debtors in the sum of $1,064.48. Execution issued against the joint property of Miller and Folk, and the individual property of Folk was returnednulla bona. This action was then brought by the plaintiff as such judgment creditor against Miller and one John C. Cook. Its object was to set aside an assignment made by Miller to Cook, as assignee, for the benefit of Miller's creditors. The case was tried at Special Term, and judgment of dismissal ordered in favor of the defendants. The conclusion of the trial judge upon the evidence *510 was satisfactory to the General Term, and an examination of the record discloses no finding that is not supported by testimony. We have only to see whether, upon these findings, any error was committed by the trial judge in his conclusion of law.
It appears that on the 1st of January, 1873, the defendant Miller and one Eastmead formed a partnership under the firm name of Miller Eastmead, to commence at that time and terminate on the 31st of December, 1877. The profits of the business were to be divided equally. It was agreed between Eastmead and Folk that Folk should receive such share of the profits of the business of Miller Eastmead as should accrue to Eastmead, leaving it to the discretion of Folk as to the portion which Eastmead should retain, such portion, however, not to be less than one-fifth. This arrangement between Eastmead and Folk was assented to by Miller upon condition that the agreement should in no respect conflict with the conditions or terms of copartnership between himself and Eastmead, or in any respect invalidate or prejudice the rights secured by the copartnership articles. Folk did not become a partner in said firm, nor did either of the parties thereto intend that he should. The business was continued by Eastmead Miller until December 31, 1877, when the copartnership expired by limitation, and Eastmead's connection with the business ceased. After that time and until the 18th of July, 1882, the business was continued by Miller individually, but in the name of Miller Eastmead; the property and assets theretofore belonging to or used in the business were employed and possessed by Miller as his own. On the 18th of July, 1882, he executed an assignment of all his property to the defendant Cook for the benefit of his creditors. The trial judge found that the assignment was in all respects lawful, just and fair, and was made by Miller and accepted by Cook in good faith and without any fraud. Upon these facts it necessarily followed that the plaintiff's action failed. The arrangement between Eastmead and Folk, as it was not intended to, so it did not give Folk any right or interest in *511
the firm business, nor did it make him a member of the firm of Miller Eastmead. His profits were to come, not from the firm, but from Eastmead, and the case is brought directly within our decision in the case of Burnett v. Snyder (
There are further facts found by the trial judge, in effect that Folk knew of the intended assignment and ratified it; but that is unimportant, since, in the other view, he had no interest whatever in the business of the firm, nor any right which could be reached by a creditor until after the firm debts had been satisfied. Whatever claim he had was against Eastmead, with whom alone he had contract relations. We think the trial judge properly dismissed the complaint, and that the General Term committed no error in affirming its decision.
The judgment appealed from should, therefore, be affirmed.
All concur.
Judgment affirmed