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Supreme Court, Appellate TermDec 1, 1899
30 Misc. 101 (N.Y. Misc. 1899)
30 Misc. 10161 N.Y.S. 839

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December, 1899.

Moses Feltenstein, for appellant.

Henry C. Botty, for respondents.

The facts material to the determination of this appeal are undisputed. On the 17th day of November, 1898, the plaintiffs herein, and one Samuel Meyer, by a written instrument made and executed by them, entered into a copartnership and engaged in the business of cigar dealers. The firm occupied a store at No. 221 Bowery in the city of New York, and their stock in trade consisted of cigars, tobacco, stationery, etc.

On the 24th day of December, 1898, Meyer, without the knowledge or consent of his copartners, and in the firm name, executed an instrument in writing, by which he purported to convey all the stock in trade and firm property to one Joseph F. Reische.

On December 29, 1898, Reische began an action in replevin to recover possession of the property claimed to have been purchased by him of Meyer, in which action Meyer was the sole defendant. The defendant in this action, one of the marshals of the city of New York, thereupon took possession of the property of the firm of Freeman, Oakley Meyer, by virtue of the requisition issued in the replevin action of Reische against Meyer.

The present action was then brought against the marshal by Freeman Oakley for the wrongful taking, detention, delivery and conversion of the property. The plaintiffs at the joining of issue were met by the allegation interposed in the answer, that there was a defect of parties, and at the close of the plaintiffs' case, and at the close of the whole case, the defendant's counsel moved to dismiss the complaint upon the ground that Meyer should have been made a party plaintiff. These motions were denied and exceptions duly taken thereto. The testimony is undisputed that the property, for the full value of which the plaintiffs had a judgment, was the property of the plaintiffs and Meyer, jointly, as partners. The purported sale by the partner Meyer, of all the partnership property having been made, neither for purposes within the scope of the partnership, nor as a transfer of partnership effects to a creditor in payment of a debt, nor as an assignment of firm property in the regular course of its trade and business, nor as security for an antecedent debt, was invalid. Bender v. Hemstreet, 12 Misc. 621; Welles v. March, 30 N.Y. 344.

It follows then that Meyer should have been made a party plaintiff or in case of his refusal to become such, a party defendant in this action (Code Civ. Proc., § 448); and he not having been made a party, the motion to dismiss the complaint for that reason should have been granted.

MacLEAN and LEVENTRITT, JJ., concur.

Judgment reversed, with costs.

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