133 N.Y.S. 197 | N.Y. App. Div. | 1911
The firm of Burgess & Secor, composed of Phineas Burgess, Charles A. Secor and James F. Secor, was interested prior to the year 1884 in a contract made with the government of the United States for the construction of a monitor. The firm had a claim for damages against the government arising out of certain delays, acts and omissions on the part of the latter. ■ Phineas Burgess and Charles A. Secor both died in December, 1884, leaving James F. Secor as the sole surviving partner of the firm. The interests of the various partners in the firm had been as follows: Phineas Burgess one-quarter; Charles A. Secor, three-eighths; James F. Secor, three-eighths.
To secure an indebtedness to the Tradesmen’s National Bank, the firm and its individual members - assigned to it all .of the claim against the government. Thereafter, in 1886, David Myerle, as executor of Phineas Burgess, brought an action in the Court of Claims of the United States to recover the .aforesaid damages. In 1890 an agreement was made between'Myerle, as executor, Secor, as the surviving partner of Burgess & Secor, and the Tradesmen’s National Bank, by which it was agreed that the claim in question should be prosecuted by Myerle, through counsel, not only in the Court of Claims but by means of congressional action, and that the expense of prosecution should be first paid out of any recovery, and the balance be divided, three-fourths to the Tradesmen’s National
Differences arose between the parties, in the course of which a claim was made by James F. Secor, Jr., against the Tradesmen’s Bank for services rendered in connection with the prosecution of the claim, and he brought suit in the Supreme Court, Westchester county, to recover the sum of $25,000 for such services. In the same month (October, 1900) James Secor, individually and as sole surviving partner of the firm of Burgess & Secor, brought.suit in the Supreme Court, Westchester county, against the Tradesmen’s Bank, Myerle, as executor, and Logan for an accounting of the funds. Thereafter, in March, 1901, a settlement was made with Secor, Jr., by which he received $13,000 from Logan and delivered a release to the Tradesmen’s Bank of all his claims. At the same time Secor, Sr., executed a release to the Tradesmen’s Bank in
It is apparent, therefore, that the plaintiffs, as representatives of the deceased surviving partner, during whose lifetime the present action was brought, are entitled to an accounting unless they are barred by the release given to the Tradesmen’s National Bank.
This release, while the individual act of Secor, Sr., operated to discharge the bank" and is an effective bar to any demand for an accounting by it. At the time it was given as surviving partner he was the Sole owner of the assests of the firm, could deal with them as his own and held the legal title thereto. (Bush Co., Ltd., v. Gibbons, 87 App. Div. 576; Williams v. Whedon, 109 N. Y. 333; Russell v. McCall, 141 id. 437.) But this release did not run to any one save the Tradesmen’s National Bank 'which alone is named therein. While'it is true that he released
Under these conditions it follows that the judgment appealed from must be reversed as to the defendants except the Tradesmen’s National Bank, and a new trial ordered, with costs to the appellants to abide the event.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred..
Judgment reversed as to all defendants except Tradesmen’s National Bank, and new trial ordered, costs to appellants to abide event. Order to be settled on notice.