Phillips v. Schlang

¶1Since I wrote the'prevailing opinion for the Appellate Term, in Morrisey v. Berman (47 Misc. Rep. 586), I have taken occasion to re-examine and reconsider the question therein passed, upon, and find myself compelled to revise the conclusion at which I then arrived. While it is undoubtedly true, as stated in United States Nat. Bank v. Underwood (2 App. Div. 342), that “where a partnership is dissolved and one partner takes the partnership property and -assumes and agrees to pay the partnership debts, lie becomes the principal debtor as to creditors, while the other partner occupies the relation of a surety, not only as between the partners themselves, bnt as' to all others who .have had dealings with the firm to whom notice of the new arrangement has been given; ” yet, as pointed out by Mr. Justice Whitney, á principal debtor and a guarantor may be joined as defendants in the same action unless the guaranty is of collection, which clearly the guaranty of a retiring partner is not. I am now convinced that in Morrisey v. Berman we pushed the consequences of the changed relations of the partners too far, and for that, reason I concur in the reversal of the present determination.