2 N.Y.S. 309 | N.Y. Sup. Ct. | 1888
The case shows that there were two agreements of partnership between Joseph Colwell, deceased, and Samuel S. Hepworth. By the first agreement Colwell owned the stock, and Hepworth received half the profits for the sole management of the business. In this agreement it was provided that the wife and children of a deceased partner should succeed to " his share therein for the remainder of the term, which was for five years. The deceased partner had the right to designate by will the interests of the wife and children as between themselves. The next agreement is based upon -a continuation of the partnership indefinitely “on the same terms and conditions as those which have previously existed, ” with the right to either party to terminate the partnership by a six-months notice. In this last agreement is contained this clause, out of which the question presented arisesf “In the ■event of the death of either, the business shall be continued by the survivor until the expiration of five years from the 1st day of February next succeeding such death; the estate of the deceased partner to have the share and interest in the profits, and to bear the same share of the losses, of the business, -as would have been received and borne by the deceased partner had he lived: provided, however,- that if the survivor shall think it necessary to employ an additional clerk in consequence of the death of the deceased partner, in such case the expense shall be charged to and shall be borne by the share in the profits of the deceased partner.” Colwell died, leaving a will disposing of his whole estate, and made no mention in it of the partnership, and giving consequently no power to the executor to continue the business. The surviving partner carried on the business under the partnership agreement, and failed in business. The business, was carried on under the old firm name, and the plaintiffs are persons who are creditors of the partnership with debts contracted subsequent to Colwell’s death.