
    GEORGE COLGROVE, Respondent, v. CHARLES TALLMAN, Impleaded, etc., Appellant.
    
      Dissolution of parrtm&rship —'right of one partner to compel creditor to sue the other, who has assumed payment of firm debts. .
    This action was brought by the plaintiff as payee of a promissory note made by the defendant under the firm name of H. E. Barnes So Co. After the making of the note the firm was dissolved, the defendant Barnes assuming the payment of all the debts; after the dissolution of the firm, the defendant Tallman wrote to the plaintiff, informing him of such dissolution and the sale of his interest to Barnes, and that Barnes had assumed to pay the debts of the firm, and requested him to proceed to collect the said note immediately. Upon the trial, Tallman proved that Barnes was solvent at the time he requested the creditor to proceed and collect the note; that he was within the jurisdiction of the court, and that the creditor without any reasonable excuse neglected and refused to proceed until the principal debtor became insolvent and unable to pay. Reid, that the plaintiff, by failing to proceed against the defendant Barnes, as requested, had discharged the defendant Tallman.
    
      Pain v. Packard (13 Johns., 174) and Zing v. Baldwin (17 Johns., 384) followed.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.
    
      D. Pratt, for appellant. Ormes cfe Stevens, for respondent.
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed and new trial granted, costs to abide the event.  