Gertrude A. Hackett, Executrix, etc., Respondent, v. Edward Belden, Appellant

Gertrude A. Hackett, Executrix, etc., Respondent, v. Edward Belden, Appellant. Where, after the obtaining of a judgment by two partners plaintiffs, and an appeal therefrom by defendant, one of the partners dies, and upon motion an order is granted substituting the personal representative of the deceased partner as plaintiff in his stead, the appeal to this court from the judgment does not bring up such order for review; it is not “ an intermediate order involving the merits and necessarily affecting the judgment.” (Code, § 11, sub. 1.) On appeal to the General Term, the judgment may he reversed for error appearing on the record, but upon appeal to this court only actual determinations of the General Term can be reviewed. (Code, § 11.) Where, therefore, a judgment entered upon an order of the General Term does not conform to that order, the proper remedy is by motion in the Supreme Court to correct the judgment, and not by appeal to this court in the first instance. (Argued January 26th, 1872 ; decided March 26th, 1872.) Appeal from judgment of General Term of the Supreme Court in the fourth department, affirming a judgment in favor of the plaintiff entered upon the report of a referee. The action was brought by Richard Hackett and Lawrence Hackett, as copartners,to recover for a quantity of high wine barrels and judgment recovered therein by them against the defendant on the 1st of July, 1868, for §3,726.78 damages and costs. From this judgment an appeal was taken by the defendants to the General Term. Pending this appeal, and on the 9th of February, 1869, Richard Hackett, one of the plaintiffs, in his individual name, by a release under seal,, released the defendant from all claims under the judgment; and on the 9th of April, 1869, Richard Hackett executed and delivered a satisfaction piece of the judgment, and satisfaction thereof was thereupon entered. In June, 1869, a motion was made by the attorneys for the plaintiffs to set aside this satisfaction on the ground that it was collusive and fraudulent as to the plaintiff Lawrence Hackett, and as to the plaintiff’s attorneys who had a lien upon the judgment for their costs and disbursements, and for one-third of the damages under an agreement with the plaintiffs. This motion was granted, and upon appeal from the order it was affirmed at General Term. By this order the satisfaction was vacated, so far as it affected the interest of the plaintiff Lawrence Hackett, and the lien of the attorneys for the plaintiffs. The order recited that the defendant had notice of the agreement between the plaintiffs and their attorneys prior to the execution of the satisfaction, and the order authorized the plaintiff Lawrence Hackett and the plaintiffs’ attorneys to proceed and enforce the judgment to the extent of their respective .interests as though the satisfaction piece had not been executed. After the affirmance of this order, and before the hearing of the appeal from the judgment, viz., on the 19th of March, 1870, Lawrence Hackett died leaving a will whereby his widow, Gertrude A. Hackett was appointed his executrix. Letters testamentary having been issued to her, a motion was made by the plaintiffs’ attorneys upon affidavits showing the facts before stated, that said Gertrude A. Hackett be substituted in place .of Lawrence Hackett as plaintiff, and thereupon an order was made at Special Term on the 28th of June, 1870, that the action be revived and continued in the name of Gertrude A. Hackett, executrix, as plaintiff, and that she be substituted in place of Lawrence Hackett as plaintiff, and that she be authorized to proceed with the action and enforce the judgment the same as Lawrence Hackett could do, if he was living. The affidavits read in opposition to this motion showed that the plaintiffs’ firm at the time of the death of Lawrence Hackett was indebted in about the sum of $2,500. That both of the partners were insolvent, and that there was no other asset of the firm except said judgment. These allegations were uncontroverted. On appeal to the General Term this order was affirmed on ■the 27th of September, 1870, the order of affirmance being entitled with the names of Eichard Hackett and Gertrude A. Hackett, executrix, etc., as plaintiffs. On the 7th of December, 1870, the appeal from the judgment having been heard at General Term, an order was entered affirming the judgment, which order was entitled in like manner. ■ On the 26th of December judgment of affirmance was entered, entitled with the name of Gertrude A. Hackett, executrix, etc., as sole plaintiff. This appeal is from the last mentioned judgment. Ho appeal has been taken to this court, either from the order vacating the satisfaction, or from the order substituting Gertrude A. Hackett as plaintiff. The defendant now seeks a review of the j udgment upon exceptions, and also a review of the order substituting Gertrude A. Hackett, executrix, as plaintiff. T. R. Strong for appellant. Ho order of the court was necessary to the continuance and prosecution of the action in the name of the survivor. (Taylor v. Church, 9 How. Prac., 190; La Chaise v. Libby, 13 Abbott Prac., 7; 21 How. Prac., 362; Voorhees’ Code, § 121, ed. 1870, and notes; Bucknam v. Brett, 35 Barb., 596; 13 Abb. Prac., 119; 22 How. Prac., 233.) The cause of action did not pass to the representative of the deceased partner, and hence could properly be made. (Taylor v. Church, 9 How., 192; St. John v. West, 10 How., 253.) The personal representative could not unite with the surviving partner. (Bucknam v. Brett, 35 Barb., 596; Richlin v. Poppenhausen, 42 N. Y., 373.) The assets belong to the surviving partner. (Story on Part., § 346; Gow. on Part., 358, 359, 3d ed.) The order in question is appealable. (St. John v. West, 10 How., 253.) The dropping the name of the co-plaintiff in the judgment was error, for which judgment will be reversed on appeal. (Chamberlain v. Dempsey, 14 Abb., 241; Loesschigk v. Addison, 19 Abb., 169.) E. W. Gardner for respondent. The judgment was a partnership demand, and plaintiffs’ attorneys had alien upon it to the extent of their claim. (11 Abb., 256; 18 N. Y., 368.) One partner cannot apply partnership property to the payment of individual debts. (Gram v. Cadwell, 5 Cow., 489; Dob v. Halsey, 16 J., 34; Rogers v. Batchellor, 12 Peters, 221; Sheriff v. Wilks, 12 Peters, 221; Everglinn v. Ellsworth, 7 Wend., 326; 4 J., 251.) If form of judgment was wrong, defendant’s remedy was to move in the court below to correct it; it furnishes no ground for reversal. (Otis v. Spencer, 16 N. Y., 610; Lewis v. Jones, 13 Abb., 427; Lake Ontario A. & N. Y. R. R. Co. v. Marvine, 18 N. Y., 584; Ingersoll v. Bostwick, 22 N. Y., 425.) [MAJORITY — Rapallo, J.] Rapallo, J. Ho appeal to this court having been taken from the order substituting Gertrude A. Hackett as plaintiff, it cannot be reviewed here unless it is an “ intermediate order involving the merits and necessarily affecting the judgment.” (Code, § 11, subd. 1.) The order in question related to matters arising subsequently to the rendition of the judgment from which an appeal to the General Term was pending. The only question at that time before the Supreme Court for adjudication, was whether any error of fact or of law had been committed in rendering the judgment appealed from. The substitution of Mrs. Hackett as a party plaintiff, in place of her deceased husband, to defend the judgment on the appeal, could not affect the determination of the appeal, or the order to be made thereon. If no order had been made substituting Mrs. Hackett as executrix in place of Lawrence Hackett, deceased, and the action had been continued in the name of Richard Hackett alone, as survivor, the same judgment must have been rendered. The court could not upon appeal have adjusted the equities between the defendant and the estate of Lawrence Hackett, arising out of Richard Hackett’s release or satisfaction. If affirmed, the affirmance of the judgment must have been for its full amount, and the defendant would have been obliged to take proceedings for the settlement of the lien of the plaintiffs’ attorneys and of the partnership accounts between Richard and Lawrence Hackett, before he could ascertain what sum, if any, he was entitled to have deducted from the judgment by reason of the release from Richard. The same proceedings are open to him now. The judgment which has been affirmed at General Term is a judgment in favor of Richard and Lawrence Hackett. It belonged to the firm, subject to the lien of the attorneys,-and each of the partners had the right to require that its fruits be first applied to the partnership debts before any division should be made between the partners. The events which transpired after the recovery of the judgment did not change the destination of the fund in this respect. Whether it be administered by Richard Hackett or "by the executrix of Lawrence Hackett, it is subject to the payment of the firm debts. The only effect of the discharge given by Richard Hackett, as restricted by the order of June 1, 1869 (affirmed Sept. 1J, 1869, and not appealed from to this court), was to entitle the defendant to be allowed out of the judgment the value of Richard Haekett’s interest in the judgment, which is his share in the surplus after payment of the firm debts. The interest of the estate of Lawrence Hackett was in no manner increased or affected by the release to the defendant of Richard’s interest in the judgment. The order of June 1, 1869, is not sought to be reviewed. Hnder ordinary circumstances, Richard Hackett, as surviving partner, would have had the sole right to collect and administer the assets of the firm, and the executrix of Lawrence would not have been a proper party to the action. It is by no means clear that the facts shown in this case rendered it regular or proper to constitute her a party plaintiff. If Richard, the survivor, in whom the legal right of action was vested, was conducting fraudulently, the ordinary and proper course of proceeding was to resort to the equitable jurisdiction of the court, and procure the appointment of a receiver who could have prosecuted or defended the appeal and collected the judgment for the benefit of all concerned. But all these matters were collateral to the merits at the stage of the proceedings at which this question arose. If they had arisen at a stage when a defect of the parties might have been interposed as a defense, they might have had some bearing upon the merits. But not arising until after judgment, they did not affect the result, so far as the defendant is concerned. The judgment and the release of Richard were a full protection to the defendant for any sum he might finally be obliged to pay, and the question whether the fund should be administered by Richard alone, or in conjunction with the executrix of Lawrence Hackett, or by her alone, was a matter which only concerned them and the firm creditors. If the defendant thinks he can establish that there will be a surplus after satisfying the lien of the attorneys and the debts of the firm, so that the release from Richard can operate to the extent of his interest in such surplus, he has the same remedies to obtain that deduction which he would have if the judgment of affirmance had been in the name of Richard as surviving partner. From the statements in the affidavits and on the motion, the prospect of any such surplus would seem exceedingly remote; but those affidavits would not be conclusive should an accounting be applied for. The effect of the satisfaction or release would be the same, whether the executrix were made a party or not. If valid, the bringing in of the executrix did not impair its effect. If collusive, her equity to have the judgment enforced and its proceeds applied to the partnership debts would not be affected by it, even though the action had been continued in the name of Richard as survivor; and this equity could have been protected against any further collusion between the parties to the record. In either event the questions arising upon the discharge must have been determined by proceedings collateral to the judgment, and did not relate to the merits of the action or of the appeal. The affidavits upon the several motions disclose an extraordinary amount of hard swearing on both sides, and render the merits of the case upon the facts exceedingly doubtful. We should not, however, undertake to re-examine the questions of fact, even did we deem the order properly before us. We are of opinion, for the reasons stated, that the order making Mrs. Hackett a party did not involve the merits, and that, consequently, the appeal from the judgment does not bring that order up for review. The only remaining questions are those which arise on the appeal from the judgment. It is claimed by the appellant that the judgment of affirmance is erroneous, in not following the decision of the General Term, which merely substituted Mrs. Hackett, executrix, as plaintiff, in place of Lawrence Hackett, and did not strike out the name of Richard Hackett as co-plaintiff. This objection is not available on appeal to this court. On appeal to the General Term, the judgment may be reversed for error appearing on the record. The power of review is not there restricted to actual determinations. (Code, § 348; Raynor v. Clark, 3 Code Rep., 230; 2 Bosw., 117 ; Brookman v. Hamill, 43 N. Y., 565; S. C., on motion for re-argument, not reported; Loeschight v. Addison, 19 Abb. Prac., 169.) But on appeal to this court the rule is different. This court will only review actual determinations, made at a General Term. (Code, § 11.) These are construed as meaning questions upon which the General Term has actually passed. (Lake v. Gibson, 2 Comst., 188; Wilkins v. Earle, 46 N. Y., 358.) If, therefore, the judgment entered in pursuance of the order of the General Term did not conform to that order, the proper remedy was, by motion in the Supreme Court, to correct the judgment, and not by appeal to this court, in the first instance. After an examination of the various exceptions taken by the defendant to findings of fact, we are of opinion that none of the findings excepted to are entirely unsupported by evidence. The settlement alleged to have been made after the death of Gibson was far from being proved by uncontroverted evidence, and there was some evidence in support of all the findings excepted to. Eone of the other exceptions which appear in the case are of sufficient moment to require special notice. The judgment should be affirmed, with costs. All concur, except Folger, J., not voting. Judgment affirmed.