
    Henry Hentz, Respondent, v. Louisine W. Havemeyer and Others, as Executors, etc., of Henry O. Havemeyer, Deceased, and Charles H. Senff, Appellants.
    Second Department,
    April 23, 1909.
    Partnership — liability of estate of deceased partner — effect of section 758 of the Code of Civil Procedure — motion to substitute representative of deceased partner as party defendant—laches—withdrawal of ' demurrer.
    The.representative of a deceased partner can he sued on, a. partnership.debt or substituted in the place of the decedent in an action already begun, where Inability to collect from the surviving partners is shown, although the surviving partners are not insolvent and the remedy against them, has not been, exhausted.
    The former rule that the representative of a deceased partner could not he sued at law by a creditor of the firm, and could be held in equity only when the surviving partners were insolvent and the remedy against them has been exhausted by execution was changed by section 758 of the Code of Civil Procedure providing that the estate of a person or party jointly liable upon contract with others shall not be discharged by his death and that the court may bring in his representative.
    Said section providing that an estate,of a person jointly liable upón contract with others shall not be discharged by his death does not mean"'that his estate is discharged unless the surviving partners are insolvent..
    A motion to substitute the representative of a deceased partner as a party defendant should not he denied for laches upon the .ground that the Statute of Limitations has run against the surviving partner where the statute never ran against the deceased partner because of his non-residence.
    The court may permit a plaintiff to withdraw a demurrer without previous notice to the defendant where it does not work to his prejudice. .
    Appeal by the defendants, Louisine W. Havemeyer and others, as executors, etc., and Charles H. Senff, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day. of October,. 1908, as resettled by an order entered on the 11th day of November, 1908, bringing in the said executors as parties defendant in the place of Henry O. Havemeyer, deceased, -and also an appeal by the said Charles H. Senff from so much of the resettlement order as denies his motion to strike out from the prior order the provision permitting the plaintiff to withdraw his demurrer to one of the defenses in the amended answer.
    
      Herbert Parsons [John E. Parsons with him on the brief], for the appellants.
    
      Barclay E. V. McCarty [Jared G. Baldwin, Jr., with him on the brief], for the respondent.
   Miller, J.:

This action was brought against Henry O. Havemeyer and Charles H. Senff upon a claim against them as copartners. The appellants contend that the representatives of a deceased partner cannot be sued for a partnership debt or substituted in the place of their decedent in an action already begun, unless the surviving partner is insolvent or until the remedy against him has been exhausted. It is also contended that the motion should have been denied for laches, and that the appellant Senff was prejudiced by the permission granted the plaintiff to withdraw the demurrer without previous notice to him of the application.

Prior to the enactment of section 758 of the Code of Civil Procedure, the law was in this State that the representatives of a deceased partner could not be sued at law by a creditor of the partnership, but could only be proceeded against in equity, and then only when the surviving partners were insolvent or had been proceeded against to execution at law. (Voorhis v. Childs' Executor, 17 N. Y. 354; Pope v. Cole, 55 id. 124.) Said section of the Code provides: In case of the death of one of two or more plaintiffs, or one of two or more defendants, if the entire cause of action survives to or against the others, the action may proceed in favor of or against the survivors. But the estate of a person or party jointly liable upon contract with others shall not be discharged by his death, and the court may make an order to bring in the proper representative of the decedent, when it is necessary so to do, for the proper disposition of the matter.” The effect of that section was to create a legal liability where there had formerly been liability enforcible only in equity. (Potts v. Dounce, 173 N. Y. 335.) That case decided that, though the representatives of a deceased joint debtor could now be sued at law, the .rule of procedure had not been changed and that inability to collect from the surviving joint debtors must still be shown: But it did not decide that the insolvency of the surviving partners alone justified a suit against the representatives of the deceased partner.

The respondent admits that the Statute of Limitations, pléaded by the appellant Senff is a bar to the action against him, but states facts tending to show that the statute never ran against the deceased partner because of his non-residence; wherefore the plaintiff contends that inability to Collect from the surviving partner is shown, and that, therefore, a suit' at. law may be maintained against the representatives of the deceased partner. It is unnecessary1 now. to enter into any discussion of the theory Upon which equity to accomplish justice allowed liability to be enforced by a creditor against ' thé representatives ¡of a deceased partner or joint! debtor, or to inquire whether such a suit could have been maintained in equity except in the single case of the inability of the surviving debtors to pay, because now, under the statute, the legal liability survives the death of the joint debtor, and all that Potts v. Dounce (supra) decided was that the rule of procedure had not been changed. The precise question before us was not involved in that casé, and we are not aware of any case deciding it.

The statute expressly provides that ¡the.estate of a person jointly liable upon contract with others shall not be- .discharged by his death.' That does not mean that the estate! shall ¡be discharged unless the surviving partners are insolvent, and while the court might preserve the rule or order of procedure not changed by the statute, it cannot modify the express provisions of the statute. The liability of the estate is the same as that of the decedent, the order of its. enforcement Only is different. The law certainly does not require a vain thing Or the impossible as a condition of enforcing a legal liability. If the appellants’ position is sound, we would have the anomaly of a legal liability against .one person which could never.be enforced for the reason that the statute barred an action against another person.

. The question of laches, therefore, becomes immaterial. If the executors may be sued, they are' not prejudiced by being substituted as defendants in a suit already begun; and for the samé reason tlie appellant Senff cannot complain, whatever may he the rule =s to his' ultimate obligation to contribute.

It is usual to grant leave to withdraw a demurrer as of conrsé, and no reason is suggested why that was not properly done in this case.

The order should be affirmed, with ten dollars costs and disbursements.

Hieschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and. disbursements.  