¶1(dissenting) :
¶2Each of the complaints sets forth perfect causes of action against Green & Yirgil as copartners. Yirgil swears that both complaints are time, and Green has not denied either.
¶3*211I agree with my brethren, that there is no validity in the technical questions raised by the appellants. That Green has no property except his interest in the partnérship, is positively testified to by Virgil and by Tillapaugh. That Pond has no property except his interest in the partnership, is sworn to by Virgil and substantially by Shumway, and Virgil swears that he is insolvent. The liabilities of the firm amount to about $4,300, and Green admitted that the firm was insolvent. Green stated October 10, 1884, that he was about to assign his interest in the assets of Green & Pond to his wife, to secure her for an individual debt against himself. Tillapaugh testified that Green said he had made such transfer to his wife, and that his wife owned nothing except her interest in the partnership assets and a house which was mortgaged for the full purchase-price, and that she would not pay any of the partnership debts, and that she was about to sell the goods to a man whose name he would not disclose. ' Pond, by his own confession, was engaged in putting the property of the firm beyond the reach of the firm creditors. The evidence that Green and Pond were each engaged on his own account, in disposing of the firms assets (which are insufficient to pay the firms debts) for the purpose of paying actual or pretended individual debts, is abundant. Neither of these defendants presents any evidence contradicting the evidence of the plaintiff, or substantiating the validity of the claims of persons to whom they are assigning partnership property. The complaints stand admitted. Not an allegation of the moving papers is denied, nor are the inferences, which naturally flow from those allegations, explained. On the merits prima facia cases for attachment were made out against Green & Pond, on the ground that they had assigned, disposed of, or were about to assign or dispose of their property, with intent to defraud their creditors. It will be observed that these transfers were not made by the firm of Green & Pond, but by the individual members thereof. A transfer by one partner of partnership property to pay an individual debt is fraudulent and void as against the firm creditors, unless the firm is solvent at the time. (Menagh v. Whitwell, 52 N. Y., 146; Wait on Fraud. Con., § 216.)
¶4It is urged that the attachments cannot be sustained as against Pond, because it is said the papers show that a recovery cannot be *212liad against him in the actions. Undoubtedly the agreement of October 4, 1884, above quoted from is, standing alone, insufficient to establish a right of recovery against Pond. (Wheat v. Rice, 97 N. Y., 296.) The causes of action alleged in each complaint against Pond are undenied, and on the trial, evidence in addition to-the agreement above quoted from may be given, which will establish the allegations. The undisputed evidence shows: (1.) A dissolution of the firms of Yirgil & Green and Green & Pond. (2.) The insolvency of both firms. In either of these cases the assets are a trust fund for the payment of the firm creditors. (Pom. Eq. Juris., § 1046; Menagh v. Whitwell, 52 N. Y., 146.) In such cases either copartner or the firm creditors may enforce the application of the fiim assests to the payment of the copartnership debts. (Story on Part., §§ 326, 360.) In addition to the right arising out of the circumstances, Pond took the interest of Yirgil “ subject to the debts of said Yirgil & Green,” and he has no cause to complain that the goods have been seized to satisfy the debts of Yirgil & Green. It is not shown that the assets of Green & Pond are different from the assets of Yirgil & Green, and it is fair to assume that they are the same, as it appears that the attachments were issued shortly after Pond succeeded to Yirgil’s interest, and there is no evidence that the new firm had incurred liabilities. Had all of the property of Green & Pond been attached in an action against Yirgil & Green, Pond would have had no cause for complaint, and he could not have obtained a discharge of it except pursuant to-section 693, Code Civil Procedure. The undisputed evidence is, that Pond has no property except his interest in the firm of Green & Pond. The appeal books do not show that the individual property of Pond has been attached or threatened, nor do they show that any property has been attached. An attachment will not. be vacated unless the moving party shows that he has been or maybe injuriously affected thereby. (Furman v. Walter, 13 How., 348; Matter of Griswold, 13 Barb., 412.) But under the attachments, the individual property of Pond, if he has or acquires any, may be seized and the moving papers not establishing an individual cause of action against him, the attachments, in so far as they authorize the seizure of the individual property, are too broad and should be modified by striking out that clause. The plaintiffs having estab*213jished a right to attach the firm property by virtue of the causes of action against Yirgil & Green, the orders denying the motions to vacate the attachments should be so modified as to vacate that part of them authorizing the seizure of Pond’s individual property, and in all other respects affirmed. The ground upon which the modifications are based, not having been presented to the court below or upon this apppeal, and the plaintiffs having substantially succeeded, the affirmance should be with ten dollars costs and disbursements in each case.
¶5The same judgment was rendered in each case, viz.: Order reversed, with ten dollars costs and disbursements. Motion to vacate attachment granted, with ten dollars costs.