27 A.D.2d 756 | N.Y. App. Div. | 1967
Judgment of the Supreme Court, Kings County, dated January 5, 1966, reversed insofar as appealed from, with $10 costs and disbursements; plaintiffs’ motion for summay judgment denied; and complaint dismissed as against appellant, with leave to plaintiffs to replead. The time to serve an amended complaint is extended until 20 days after entry of the order hereon and upon payment of the costs and disbursements herein granted. The action is for specific performance of an agreement providing for defendants, as general partners of a real estate partnership syndication, to repurchase, upon demand, all or any part of plaintiffs’ interests, as limited partners thereof. Ordinarily, general partners are personally and individually liable for all obligations of the partnership, where the joint property is inadequate to pay partnership debts (Partnership Law, § 26; Ruzicka v. Rager, 305 N. Y. 191; Friedman v. Gettner, 6 A D 2d 647, affd. 7 N Y 2d 764), so that, when partnership assets are insufficient, creditors may look to the separate property of any one of the general partners. In view of this principle, whether the agreement herein is viewed as a promise by defendants to repurchase plaintiffs’ interests out of partnership assets or out of their individual assets, the complaint is insufficient in the absence of allegations that all liabilities of the partnership, other than those owed to general and limited partners on account of their contributions, have been paid, or that there shall remain sufficient property of the partnership to pay them, in the event plaintiffs are granted relief (Partnership Law, § 105, subd. [1], par. [a]; Herrick v. Guild,