
    Mary Ann Smith, Respondent, v. Benjamin S. Cowles, Appellant, Impleaded with William H. Faxon and Others, as Executors, etc., of Charles H. Faxon, Deceased, Respondents, Impleaded with Others, Defendants.
    
      Partnership—real'estate purchased with partnership money and the title taken in the individual names of the partners — right of the heirs of .¿¿.deceased partner to maintain an action for the partition thereof—general objection, when insufficient.
    
    Where partners dealing in books, stationery and fancy goods purchase real property with partnership funds, take the title thereto in their individual names and carry the account with reference to such real property in their partnership books, although the property is not used in the copartnership business and there is no agreement between the partners that it shall be held as partnership property, upon the death of one of the partners the share of the real property standing in his name descends as real estate to his heirs subject to the- equity of the surviving partner to have it appropriated for the payment of the firm debts.
    Where it appears that it is not necessary to resort to the real estate for the payment of the firm debts or for the adjustment of any balance between the partners, the heirs of the deceased partner may maintain an action to partition the ■ property.
    
      A general objection to the receipt in evidence of a commission to take testimony, that it was not issued in conformity to the Code, will not entitle the objecting party to raise, for the first time, on appeal the objection that, the order therefor was entered by the clerk without any direction of the court.
    Appeal by the defendant, Benjamin S. Cowles, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and of certain of the defendants, entered in the office of the clerk of the county of Warren on the 14th day of July, 1902, upon the decision of the court, rendered after a trial at the Warren Trial Term, a jury having been waived, directing a sale in partition and determining the interest of the various parties to the premises in. question.
    
      Henry W. Williams, for the appellant.
    
      A. Armstrong, for the plaintiff, respondent.
    
      S. Brown and L. M. Brown, for the defendants, respondents.
   Chester, J.:

The appellant Cowles and one Horace S. Crittenden, now deceased, were copartners doing business as dealers in books, stationery and fancy goods. The copartnership was dissolved by the death of Crittenden in 1900. In September, 1891, during the existence of the partnership, they purchased a house and lot in Grove avenue iir the village of Glens Falls and took the title in their individual names. They gave a mortgage upon it for $1,800, and a mortgage for that amount is still held by respondents Faxon and others, which is a lien upon the property. The balance was paid out of partnership funds and the account with reference to the house and lot was carried in the partnership books. The property was not used in the partnership business. The plaintiff, as one of the heirs, at law of Crittenden, insists that he and the appellant held the property as. tenants in common and that when Crittenden died intestate his undivided one-lialf interest descended to his heirs. The appellant, on the other hand, insists that the property was partnership property; that there has been no accounting of the partnership matters, and that it is necessary to resort to whatever equity there was in this property for the purpose; of adjusting the partnership affairs.

The Court of Appeals, speaking by Andrews, Ch. J., in the case of Darrow v. Calkins (154 N. Y. 514), says: The clear current of the American decisions supports the rule' that in the absence of any agreement, express or implied, between the partners to the con-, trary, partnership real estate retains its character as realty with all the incidents of that species of property between the partners themselves and also between a surviving partner and the real and personal representatives of a deceased partner, except that each share is impressed with a trust implied by law in favor of the other partner, that so far- as is necessary it shall be first applied to the adjustment of partnership obligations and tlie payment of any balance found to be due from the one partner to the other on winding lip the partnership affairs. To the extent necessary for these purposes the character of the property is in equity deemed to be changed into personalty. On the death of either partner, where the title is vested in both, the share of the land standing in the name of the deceased partner.descends as real estate to his heirs, subject to- the ■equity of the surviving partner to have it appropriated to accomplish the trust to which it was primarily subjected.”

There was no agreement shown between thé partners here that the property in question was to be held by them as partnership property and, in fact, the evidence of the' appellant shows very ■clearly that the property was purchased as an investment by them. The court below has so found upon sufficient evidence and also that the firm was not dealing in real estate and that the premises were not used in the partnership business. There is no testimony as to the condition of the partnership affairs at the time of Crittenden’s death, but it appeared that at the time of the trial the entire indebtedness of the firm was upon a note to the appellant as trustee and amounted to a little over $600, and that the firm had something over $300 in cash on hand and accounts Worth $100. It also appeared that the appellant was indebted tó the firm to the amount of at least $400, and that the appellant had divided $2,400 of the personal assets of the firm about eight months after Crittenden’s death between Crittenden’s administrator and himself. It thus appeared that Cowles had had sufficient personal property in his hands as surviving partner to enable him to settle up all the firm debts without resorting to the real estate, and upon this showing I do not think, after the appellant has so divided more than sufficient of the firm’s ■ personal assets to liquidate all firm debts, that he is in a position to urge that the share of Crittenden in this real estate is now impressed with a trust in his favor to enable him to pay the only remaining debt of the firm which is due to him as trustee, and especially not when, if he refunds the amount he has overdrawn, he will with that still have on hand more than sufficient to pay such debt. Nor does this conclusion furnish inadequate protection to the firm creditor, who, in this case, is the appellant himself as trustee, for he is not insolvent, as he owns an undivided one-half of the property sought to be partitioned and on the trial swore it was worth considerably more than the mortgage. So I think it is clear in this case that there is no necessity for any resort to the real estate ' for the payment of any of the firm debts or for the adjustment of any balance between the members of the firm. That being so, the plaintiff can properly maintain her action for partition.

Upon the trial the plaintiff offered in evidence commissions to take the testimony of two witnesses and these were objected to by the defendant Cowles on the ground that they were not issued in accordance with the provisions of the Code of Civil Procedure and that the return was not proper. The objection was overruled, the commissions received in evidence and an exception taken. It is urged upon the appeal that there was no order of the court for the issuance of these commissions and no consent to the interrogatories attached thereto,.and that the only orders for the commissions were orders entered by the clerk without any direction of the court or justice thereof. The respondents’ counsel, in answer to this, has handed up to the court certified copies, from the files of the clerk’s office, of stipulations in this action signed by the appellant’s attorneys, agreeing that the order for these commissions'might be entered by the clerk without notice and consenting to the interrogatories in question which are annexed thereto, but these stipulations not being in evidence and, therefore, not in the record, cannot be considered by us in determining this appeal; nor is it necessary for us to do so to sustain this judgment, for in our opinion the objection made to the receipt in evidence of the commissions and the evidence taken.

thereunder was not sufficient to justify the court in rejecting them. They appear to he regular upon their face. The objection was simply a general one, that they were not issued in conformity to the Code. Nothing was pointed' out in the objection to indicate in what respect they did not so -conform, and it is well settled that a general objection based upon grounds not disclosed will be disregarded upon appeal unless it clearly appears that the objection, if properly made, would, have been decisive of the case and could not have been obviated, or unless the evidence in its essential nature was incompetent. (Tooley v. Bacon, 70 N. Y. 34; Quinby v. Strauss, 90 id. 664; Stouter v. Manhattan Railway Co., 127 id. 661; Wallace v. Vacuum Oil Co., 128 id. 579.) Here if the specific defect now insisted upon had been specified in the objection the court would have known what he was called upon to decide and the- respondents’ attorney would have had an opportunity to have shown, if he could,, either that the law had been complied with or that its provisions, had been waived by the party, making the objection.

So I think this judgment should not be reversed because of this ruling; nor do I find any reversible error in the other matters called to our attention by the appellant.

The judgment should be affirmed, with costs.

All concurred.

Interlocutory judgment affirmed, with costs.  