
    Cornelius N. Bliss and. Others, Respondents, v. Lewis M. Hornthal, and Gus Lewy, as Trustee of the Firm of Weiss Bros., Appellants, Impleaded with Others, Defendants. Clement A. Auffmordt and Others, Respondents, v. Lewis M. Hornthal, and Gus Lewy, as Trustee of the Firm of Weiss Bros., Appellants, Impleaded with Others, Defendants. Thomas A. Whicher and Others, Respondents, v. Lewis M. Hornthal, and Gus Lewy, as Trustee of the Firm of Weiss Bros., Appellants, Impleaded with Others, Defendants.
    
      Special partner withdrawing himself and his capital from an insolvent firm—rights of creditors, as against the general partners continuing the business, to prevent such withdrawal of capital—attachment creditors—evidence of solvency — a trustees power of application of the trust fund.
    
    A special partner in a limited partnership Who, upon withdrawing from the partnership at a time when it is insolvent, is paid by the general partners who continue the business a portion of the capital contributed by him to the limited partnership, is not entitled to retain the money so received as against creditors of the special partnership under contracts made by it, although the contracts were not completed or the goods actually delivered until after the special partnership ceased to exist.
    Judgment creditors of the general partners, where, after the withdrawal of the . special partner, the general partners execute a trust qleed for the benefit of their creditors, are entitled, upon the ground of the insolvency of the limited copartnership, to complain of an attempt on the part of the judgment debtors to prefer the special partner out of their property for the remainder of the contribution made by him to the limited partnership, and may properly compel him to account for money so received; attachment creditors of the general partners are, under subdivision 2 of section 655 of the Code of Civil Procedure, entitled to similar relief.
    Prospective or estimated values of property, including such items as the good will of a business, etc., are not a genuine test of the solvency of the owner. '
    
      Semble, that a trustee under a deed of trust, which gives a preference to certain creditors, has no discretion to make any other application of the money received under such deed than to pay the preferences thereby given.
    Appeal, in each of the above-entitled actions, by the defendants, Lewis M. Hornthal, and Gus Lewy, as trustee of the firm of Weiss Bros., from judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of June, 1897, "upon the decision of the court rendered after a trial at the New York Special Term, holding the defendant Lewis M. Hornthal accountable for numerous sums of money, appointing a receiver of the same, and directing the method of the payment of such moneys. ■
    
      Nathan Ottinger, for the appellant Hornthal.
    
      Lloyd McK. Garrison, for the appellant Lewy.
    
      Charles E. Hughes, for the respondents.
   McLaughlin, J. :

These actions were brought to compel the restitution by the defendant Hornthal of certain moneys received by him from the firm of Weiss Bros., composed of the defendants Albert and Robert Weiss, and from the defendant Lewy, as trustee, for the benefit of certain preferred creditors of said firm. The plaintiffs in each action recovered judgment, from which the defendants Hornthal and Lewy have appealed. The legal principles applicable to and controlling upon us in disposing of the questions presented were settled and declared by the Court of Appeals in Baily v. Hornthal (154 N. Y. 648), unless the facts established upon the trial of these actions are different than those established upon the trial of that action.

Hpon the trial it was made to appear, and the trial court found as a fact, that in April, 1886, the defendants Albert Weiss, Robert Weiss and the defendant Hornthal'formed, under the firm name of Weiss Bros., pursuant to the statute of the State of Texas, a limited copartnership, in which Hornthal was the special and the other two the general partners; that the capital contributed by Hornthal was $50,000; that the limited copartnership was renewed and continued from time to time until April 30, 1891, when it was succeeded by the general copartnership of Weiss Bros., composed of Albert and Robert Weiss 'alone. The general copartnership took all of the assets of the limited copartnership, and continued the business theretofore carried on by it without interruption or apparent change of any kind until November 5, 1891. On the 23d of May,-1891, the general copartnership paid to Hornthal $25,000, a portion of the capital contributed by him to the limited copartnership, On the 5th of November, 1891, being unable to pay its obligations, the general copartnership failed, its failure being first made known by the execution of a deed of trust delivered on that day to the defendant Lewy, as- trustee, for the benefit of certain creditors, whose claims aggregated upwards of $225,000. In this deed of trust the defendant Hornthal was preferred for the balance of'the capital contributed by him to the limited copartnership, together with interest thereon from the date of his withdrawal, amounting at that date to $26,433.34. It was also made to appear, and the trial court found, that at and prior to the time Hornthal withdrew'from said firm the limited copartnérship was insolvent, and that the capital contributed by the defendant Hornthal had been wholly exhausted, and that the general copartnership of Weiss Bros., on the 30th day of April, 1891, and at all times thereafter, including the partners Albert and Robert Weiss, were insolvent and unable to pay their debts in full. It was also made to appear that at the time the firm made the trust deed, in November, 1891, it was indebted in something over $700,000, of which over $300,000 was unsecured, and that the only assets which the firm had to meet such unsecured claims were cash and accounts, then estimated to be worth less than $175,000; that the debts of the firm then apparently exceeded the assets by $150,000, and subsequent events demonstrated that they actually exceeded them by over $200,000.

The first two actions were brought in aid of judgments recovered by the plaintiffs, and the other one in aid of an attachment. A portion of the indebtedness was contracted before the expiration of the limited copartnérship, and a portion of it thereafter. As to the former, the theory of the plaintiffs is that, as creditors of the limited copartnership, they were entitled to payment before any of the special capital of Hornthal could be withdrawn; and, as to the latter, that the special copartnership being insolvent at the time of its dissolution, the new firm had no right to apply any of its assets, whether derived from the special copartnership or otherwise, to the reimbursement of Horntlial’s special capital, because he then had no enforcible claim for that capital, or any part of it. Upon examination of the record in the Baily case, it will be found that the rights of the plaintiffs to maintain these actions upon the theories referred to was there iiot only settled and determined, but that the facts there established were substantially the same as the facts established upon the trial of these cases. Upon the trial of these actions further evidence was given, tending to show the actual insolvency of the special copartnership at the time Hornthal withdrew. The books of account of the firms were not offered in evidence upon the trial in the Badly case, but were upon the trial of' these cases, and from the books of account and other evidence taken in connection therewith, the conclusion is irresistible that the special copartnership of .Weiss Bros., on the 30th of- April, 1891, was insolvent and could not pay its debts in full. It is undoubtedly true that there is no legal presumption that the firm was insolvent in April because its successor failed in November, but, as the Court of Appeals said in the Badly case, “ The difference between the assets and liabilities at the latter date was so overwhelmingly large as .to require explanation.” This the defendants did not give. The general copartnership, as we- have seen, succeeded the special copartnership on the 30th . of April, 1891, and six months later failed with liabilities at least $200,000 in excess of its assets, and no evidence was offered whatever showing or tending to.show that this large excess of liabilities accrued intermediate the termination of the special copartnership and the failure of the general one. The existence of liabilities to this extent in excess of assets, without explanation, taken in connection with the books of account, amply sustains the finding made by the trial court that the firm was insolvent on the 30th of April, .1891; that the new firm continued to be insolvent from that time until its failure in November, and that Albert and Robert W eiss were also insolvent. It is true an ¡attempt was. made on the part of the defendants to show that at the time Hornthal withdrew there were • apparently other assets consisting of the good will of the business, etc., Which should be considered. This is undoubtedly true, but the evidence thus offered did not destroy or overcome the force of the evidence offered on the part of the plaintiffs, showing insolvency. Prospective or estimated values of property are not a genuine test of solvency of the owner. One is insolvent whenever he does not have property the actual value of which is sufficient to pay his debts in full.

In the Badly case the court held-that the payment by the trustee to Hornthal was not justified inasmuch as the amount paid belonged to creditors, and that decision, in so far as it relates to that portion of the relief demanded here, is conclusive. The questión of Hornthal’s liability to restore the $25,000 paid to him in May, 1891, was not definitely determined in the Baily case inasniuch. as that ques-" tion was not then before it. It is, however, squarely presented here, and we are of the opinion that that payment was in fraud of the rights of these plaintiffs, in so far as they were creditors of the spiecial copartnership) upon contracts for goods ordered by that firm, or contracts made by such firm during the existence of the limited copartnership, although the contracts were not completed or the goods actually delivered until after the special copartnership ceased to exist. At the time of the dissolution of the special copartnership, the executory contracts then existing formed a liability of that concern. There is nothing to indicate that at the time these contracts were entered into, it was then contemplated by any of the plaintiffs that any other liability should exist than that of the special copartnership upon these contracts. The fact that the goods were not delivered until afterwards, and then to the new firm, did not absolve the old firm from performing its contract by praying what it had agreed. The contracts were made and the goods ordered by the special copartnership), and the obligation to pray rested upon it. The dissolution of a firm does not terminate its contracts. (Briggs v. Briggs, 15 N. Y. 471; Merrill v. Blanchard, 7 App. Div. 167.) As was said in Kennedy v. Porter .(109 N. Y. 527, 552), “a firm always continues to exist for the purpose of collecting, settling up and distributing its assets and performing its antecedent engagements.” (Griswold v. Waddington, 16 Johns. 438; Hubbard v. Matthews, 54 N. Y. 43; King v. Leighton, 100 id. 386.) It was said by the chancellor in the Griswold case “a dissolution of a prartnersliipr only had respect to the future. The parties remain bound for all antecedent engagements. ■ The partnership may be said to continue as to everything that- is past and until all pre-existing matters are wound upr and settled.”

The defendant Lewy, in the answer interposed by him, alleges that the money paid by him to Hornthal under the trust deed was paid by mistake or under a misunderstanding of the facts, and that in equity he,, as trustee, is entitled to the return of that money in order that it may be disbursed by him in pursuance of the other provisions of the trust deed. The court below rejected his claim. There does not seem to be any proof of mistake or of any misunderstanding. The money was piaid under and in pmrsuance of the authority contained in the trust deed and not otherwise. The trustee merely carried out the.provisions of the trust as he was authorized and directed by the power appointing him. He had no option. He was obliged under the trust deed to do just what he did. It was' not open to' him to dispute the validity of the preference to Hornthal, and a return of that money to him mow would do no good, because he could- do nothing with it except apply it as directed -in the trust deed. Under that instrument it must go for that preference, or not at all. This is so clear that it does not need the citation of authorities to sustain the proposition, and no further reference will be made to it.

The Whiclier action-is different from the other two in that it is brought in aid of an attachment. The questions, however, involved are the same in all respects save that they relate to the form of the action. The plaintiff’s claim arises out of a contract antedating the dissolution of the limited copartnership, and we see no reason why the plaintiff is not entitled to the relief asked. By the provisions of the Code (§ 655, subd. 2) they are entitled, pursuant to an order 'of the court, to maintain, with the sheriff, against any person or persons any action “ which may now be maintained by a judgment creditor in a court of equity, either before the return of an execution in aid thereof or after the return of an execution unsatisfied.” The action is, as we have already seen, in aid of .an attachment, and the plaintiffs are entitled to reach whatever judgment creditors may reach in a judgment creditor’s action. As judgment creditors of Albert and Robert Weiss are entitled, upon the ground of insolvency of the limited copartnership, to complain of the attempt of the judgment debtors to prefer Horntlial out of their property, and to compel him to account for the money received, so the plaintiffs under the statute, having complied with all of its conditions, are entitled to similar relief.

After a careful consideration of the voluminous record before us we .have been unable to find. any material. difference between the facts established in these cases and those established in the Baily case. Indeed, the facts here are more unfavorable to the defendants than in that case. It, therefore, follows that each of the judgments appealed from must be affirmed, with costs.

Van Brunt, P. J., Rumsey and O’Brien, JJ., concurred.

Judgments affirmed, with costs.  