
    Norris Griffin, Respondent, v. George S. Hungerford, Appellant.
    (County Court, Onondaga County,
    March, 1897.)
    1. Partnership — Liability of continuing partner.
    Where the continuing partner upon a dissolution assumes the debts of the firm and receives its assets, he becomes in equity the principal debtor and the retiring partner is only a surety.
    2. Set-off — Pirin debt.
    A debt due from a firm which was assumed by the continuing partner upon dissolution may be set off against an individual claim in favor of such continuing partner.
    Appeal from judgment rendered by Parker S. Carr, justice of the peace, in favor of the plaintiff for $202.57, damages and costs.
    
      George B. Warner, for appellant.
    W. S; Rogers, for respondent.
   Ross, J.

Complaint for goods sold and delivered.

Answer, with other matters, alleges that prior to March 2, 1896,. the plaintiff and one Kemp were copartners. ' That such copartnership had previously, sold defendant a quantity of goods. That said copartnership dissolved prior to March 2, 1896. That plaintiff took the partnership property upon such dissolution .and assumed the partnership debts. That on March 2,. 1896, the. defendant gave to the plaintiff individually a note of $225 in settlement of the claims which said firm had had at that time against the defendant, which note, after one ¡renewal,' was paid and the money received by the plaintiff. That at the time of making said note the plaintiff assumed and agreed to pay any mistakes in the account of said firm. That by mistake said note was given for a much larger sum than was actually due the said firm, which amount the defendant sought to offset against the claim of the plaintiff. Upon the trial the claim of the plaintiff was proved without opposition, and upon the cross-examination of the plaintiff, and upon the direct examination of the defendant, the defendant' sought'to establish the facts which he alleged in his answer.. All inquiries with reference to the partnership account were excluded. The notes were also excluded. Inquiries as to the plaintiff’s taking the firm property were excluded; also the question whether he had' agreed to pay the debts of the firm'; also whether on March' 2, 1896, at the time of making the said note the plaintiff was individually the owner óf the firm account; also whether the plaintiff at that time agreed to rectify any mistakes in the amount of the note, and other questions of the same character were excluded. No evidence was offered as to the amount of the mistake claimed by the defendant. - •

It is claimed by the plaintiff that this evidence was inadmissible because it only tended to prove- a claim against the firm of Griffin .& Kemp; it cotild not be offset against an individual claim in favor of Griffin. If Griffin assumed debts of the firm and received its assets he became in equity the principal debtor and- the retiring partner a surety (Menke v. Gerbracht, 75 Hun, 181; Steven v. Lord, 84 id. 353; Colgrove v. Tallman, 67 N. Y. 95; George on Partnership, 382) that retiring partner need not be joined.

If the plaintiff at the time the note was given agreed to rectify any mistakes, he may. have become individually liable by the agreement, providing the other requisites of a contract existed. -

In a proper case a set-off of the amount due from a-firm will be allowed against an amount due to a partner. Shipman v. Lansing, 25 Hun, 290.

The merits of the defendant’s claim and the effect of delay in asserting it are matters for the trial court.

For the errors' complained of judgment must be reversed, with costs.

Judgment reversed, with costs.  