
    In re DUNN.
    District Court, E. D. New York.
    Sept. 25, 1931.
    
      Sweet, Lefenfeld & Sweet, of New York City (Irving Sweet, of New York City, of counsel), for petitioning creditor.
    Edgar T. Beamish, of Brooklyn, N. Y., for Samuel Black, administrator.
   MOSCOWITZ, District Judge.

This is a motion made by the petitioning creditor to strike out the answer interposed by the administrator of the estate of Robert Wagner, deceased, and that James F. Dunn individually, and as sole surviving partner of the copartnership formerly known as Dunn & Wagner, the alleged bankrupts herein, be adjudicated a bankrupt upon default in pleading and upon consent to an adjudication filed by the surviving partner Dunn.

An answer has been interposed by Samuel Black as administrator of Robert Wagner, deceased. Robert Wagner, the deceased, died before the filing of the petition in bankruptcy. An administrator of a deceased partner, as such, cannot plead to a petition in bankruptcy against the surviving partner.

Section 38. subd. b, of the Bankruptcy Act (11 USCA § 41(b), provides: “(b) The bankrupt, or any creditor, may appear and plead to the petition within five days after the return day, or within such further time as the court may allow.” Under section 18, subd. b, the only ones permitted to file an answer are the bankrupt and a creditor. The administrator of the deceased partner is neither.

Under the laws of the state of New York, upon the death of one partner the title to the assets or property of the partnership is in the surviving partner as legal owner. In Costello v. Costello et al., 209 N. Y. 252, at page 259, 103 N. E. 148, 151, Judge Collin said: “The death of the testator dissolved the firms, and the interest passed to Ms executors. The title to the assets or property interests of the firms was thereafter in the surviving partners as legal owners, and not as trustees in the strict sense of that term although the law imposed upon them certain obligations of a fiduciary nature. The title to partnership property is not in the individual members of the firm, so that either may assign or transfer to another an undivided share in any specific articles, but it is in the firm as an entirety, subject to the right of the partners to have it applied to the payment of the debts of the firm and the equities of the partners, and surviving partners succeed to the exclusive possession and control of the assets and the right, within the limits of good faith, of disposing of the assets and closing the partnership, affairs. Williams v. Whedon, 109 N. Y. 333,16 N. E. 365, 4 Am. St. Rep. 460.”

In McCann et al. v. Hazard et al., 36 Misc. Rep. 7, 72 N. Y. S. 45, at page 48, Judge Forbes said: “On the death of one member of a co-partnership the surviving member becomes the legal owner of the assets of the film. The survivor has the exclusive right to sell, mortgage, and dispose of the fund, in the performance of his duty in closing up the affairs of the co-partnership. The surviving partner does not take such assets as trustee, but as survivor, in the nature of a trust, holding the legal title subject Ip the equitable right of the deceased partner to have the assets applied first to- the payment of the firm’s debts, then to a distribution of any surplus. Williams v. Whedon, 109 N. Y. 333,16 N. E. 365, 4 Am. St. Rep. 460; Durant v. Pierson, 124 N. Y. 444, 26 N. E. 1095, 12 L. R. A. 146, 21 Am. St. Rep. 686; Bell v. Hepworith, 134 N. Y. 442, 31 N. E. 918; Preston v. Fitch, 137 N. Y. 41, 33 N. E. 77; Russell v. McCall, 141 N. Y. 437, 36 N. E. 498, 38 Am. St. Rep. 807.”

A voluntary petition in bankruptcy may be filed by a surviving partner. In re Salladay (D. C.) 22F.(2d) 300.

Under the laws of the state, of New York, a sole surviving partner may file a general assignment for the benefit of creditors without the consent of the representative of the surviving partner. Haynes v. Brooks, 116 N. Y. 487, 22 N. E. 1083.

It is dear, therefore, that an administrator of a deceased partner, as such, may not plead to a petition in bankruptcy against the surviving partner. The court is bound by the provisions of the Bankruptcy Act, and there is no discretion in the court to permit the filing of an answer by the representative of a deceased partner.

Motion to strike out the answer and for adjudication will be granted. Settle order on notice.  