
    Rufus R. Davis, Resp’t, v. The President, Managers and Company of the Delaware and Hudson Canal Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 20, 1888.)
    
    Partnership — Judgment against all the partners, may be enforced AGAINST PROPERTY OF FIRM.
    A judgment against all the members of a firm, although not on its indebtedness may be enforced by execution against the firm property, and a good and full title acquired thereto by the purchaser, both in law and I equity, not only against the judgment-debtors, but the creditors of the firm. Smith v. Hall, 67 N. Y.( 48, distinguished.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment in favor of the plaintiff entered upon the report of a referee.
    
      J. Sanford Potter, for app’lt; O. F. Davis, for resp’t.
    
      
       Reversing 39 Hun, 653, mem.
      
    
   Danforth, J.

—The defendants occupied certain premises, not their own, of the rental value of $100 per year, during the year 1882, and down to July 1, 1884. No rent has been paid to any one, and the plaintiff, claiming in part as assignee of a former owner and for the residue as owner, sues for reasonable satisfaction for that use and occupation. So far as he claimed as assignee the referee found against him, but gave judgment in his favor for the rental value of the premises, from the 1st of July, 1883, to the 1st of July, 1884. The issue was upon his title to the premises, and the only question on this appeal is whether the referee decided correctly concerning it. The property in 1868 was owned by Emerson E. Davis, Daniel G, Percival, Tracy Cowen and Oscar E. Davis, doing business under the firm name, “'Davis, Cowen & Percival.” The title was in them as individuals, but the property was bought for firm purposes, paid for with money of the firm and used in its business. On the 10th of March, 1869, Cowen sold and conveyed his interest in the land to one Griswold, who took Oowen’s place in the firm, and the business was continued under the firm name of “Davis, Percival & Gris-wold ” until 1872, when it went out of businesss. In 1877 one Davis recovered a judgment against Emerson E. Davis, Albert H. Griswold, Daniel G. Percival and Oscar F. Davis, being the persons above-named, and another, for $1,283.63, and enforced its collection by execution and sale of the premises in question to one Samuel K. Griswold, who received a certificate of sale and afterwards, on the 23d of February, 1884, a sheriff’s deed in the usual form.

The debt upon which recovery was had was not a firm debt, and subsequently, in June, 1879, a judgment was recovered upon a firm liability in favor of one Eddy against the same parties, and upon sale of the same premises under execution the plaintiff became the purchaser, and on the 18th of March, 1884, received a sheriff’s deed.

The plaintiff has recovered in this action, upon the theory as held by the referee and general term, that the last judgment, being for a firm debt, had priority and gave title to the premises, and that the purchaser under the first judgment acquired only the right of the individual partners in the premises, and therefore a contingent right to the surplus after paying firm debts. ■

A different conclusion is required by the view taken by us of a similar question in Saunders v. Beilly (105 N. Y., 12; 6 N. Y. State Rep., 452), where we held that a judgment against all the members of a firm, although not on its indebtedness, might be enforced by execution against the firm property and a good and full title acquired thereto by the purchaser both in law and equity, not only against the judgment creditors, but the creditors of the firm. This defense was open to the defendant. The defendant did not take the right to occupy under any agreement with the plaintiff, nor in any way accept him as its landlord. There is therefore no estoppel. The pleadings put the plaintiff’s title in issue, and the effect of the first judgment and sale under it disclosed that he had none.

Smith v. Hall (67 N. Y., 48), cited by the respondent, is not applicable. In that case the defendant, by answer, admitted that the property in question was received by the defendant from the plaintiff, and the only dispute was as to the terms on which it was received. Here the contention goes further, admitting no right in the plaintiff; the defendant denies his title. We think the appeal should prevail.

The judgment appealed from is therefore reversed and a new trial granted, with costs to abide the event.

All concur, except Peckham, J., not sitting.  