
    John H. Cheever, Pl’ff, v. Avery T. Brown, Assignor for Creditors of William H. Guion et al., Def’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1890.)
    
    Assignment for creditors—Proof of claim of firm against individual ASSIGNOR.
    In the case of an individual assignment of a member of a firm, proof of a claim against him by the firm consisting merely of an estimate made by his partner and acquiesced in by himself, without proof that the value placed on the firm profits in making such estimate was the true value, is insufficient to authorize a finding in favor of the claim.
    Appeal from order confirming referee’s report and from decree ■directing distribution of assigned estate.
    
      Clark Bell, for William H. Guión, as receiver, app’lt; William Allen Buller, for William H. Webb, resp’t; William W. Jenlcs, for plaintiff, resp’t.
   Bartlett, J.

This was a suit against an assignee for an accounting. The referee who took proof of the claims of creditors rejected the claim of William H. Guión, as receiver of the firm of Williams & Guión, on the ground that it had not been substantiated by the proof offered in support thereof; and the sole ■question presented for determination oh this appeal is whether the evidence before the referee demanded a different conclusion.

The claim of the appellant was that William H. Guión individually was indebted to the firm of Williams & Guión in the sum of $106,937.82. This amount was arrived at, according to the testimony, as the result of discussions between William H. Guión and the late Stephen B. Guión, deceased, representing the firm. We do not think the transactions between these parties were such as to make an account stated. Hence, the claim in behalf of the firm could not be allowed in this proceeding, as against the assigned estate of William H. Guión individually, on the .ground that an account had been stated between him and the co-partnership, which fixed the amount that he owed. It was essential, therefore, to establish the amount of William H. Guion’s indebtedness to the firm of Williams & Guión by proof which •should be competent as against his other creditors having claims against his estaté in the present suit. That amount could only be ascertained by looking into the'relations between Mr. Guión and the copartnership, and finding out what the firm was entitled to charge against him, and what was the value of his interest in the firm profits or assets. The books of the firm show charges against -him on general account, and on loan account, aggregating a large amount. From this must be deducted the appellant’s interest in the profits of Williams & Gruion. His very claim, put before in the-referee, speaks of these profits as unascertained, but as estimated as nearly as possible on January 18, 1884, at $464,000. The-evidence in this matter shows, not what the profits actually did amount to, but what Stephen B. Gruion said they amounted to. The manner in which they were fixed is stated by Mr. William H. Gruion himself in his testimony as follows: “ There was no-estimate of the profits of the concern composed of myself and Stephen B. Gruion until after my failure. It was then made up-by my brother, and stated to me by him and by our bookkeeper, who made it up in New York. I got it from the bookkeeper, Mr. Thompson. I don’t know anything further than his statement. I don’t know anything about it.”

How it seems to us quite clear that the other creditors of Mr. William H. Gruion’s individual estate, in the present proceeding, are not bound by any mere estimate of his indebtedness to the firm of Williams & Gruion, made in this way by his copartner and acquiesced in by himself; and, indeed, that in the absence of any evidence whatever to show that the value placed upon the firm profits, in making that estimate, was the true value as matter of fact, no sufficient foundation was laid for a finding by the referee in favor of the appellant’s claim, even though no opposing testimony was offered.

We think the order appealed from, together with the decree,, should be affirmed, with costs.

Van Brunt, P. J., concurs in result.

Barrett, J.

I concur. The question was not whether upon a liquidation of the copartnership affairs Mr. W. H. Gruion would have been found to be indebted to his copartners, but whether he was actually indebted to his own firm in such a form that the receiver of that firm could recover against him or his assignee.

This question seems to have been ignored, and Mr. W. H. Gruion, as his firm’s receiver, proceeded before the referee as though it were only necessary to show his individual liability for some-specific sum upon a firm accounting. But even upon this theory, proof of the essential facts was lacking. His individual creditors-certainly had a right to strict proof of his indebtedness to his firm.

Their dividend from his individual estate should not be reduced bv mere estimates of the partners in the firm as between themselves nor yet by book-keeper’s statements as to the supposed condition of the firm. I think with Mr. Justice Bartlett that the-referee was right for rejecting this claim.  