Durant v. Abendroth (97 N.Y. 132, 1884)

Rapallo, J.

This action was brought against the defendant Abendroth, and the defendants Griffith and Wundrum, as copartners dealing under the firm name of Griffith & Wundrum, to recover a balance of account due from that firm to Colwell & Bro., and assigned to the plaintiff.

The defendant Abendroth alone defended. He denied the partnership as alleged in the complaint, and claimed that it was a limited partnership, formed under the statute, in which he was the special partner and Griffith and Wundrum were the general partners.

This defense was met by proof that the affidavit of the general partners filed pursuant to the statute authorizing the formation of limited partnerships, so far as it averred that the sum contributed by the special partner to the common stock had been actually paid in cash, was untrue, such payment not having been made in cash, but by a check payable several days later than the date at which the affidavit was made, which misstatement, though the check was duly paid, was held by this court, in the case of Durant v. Abendroth (69 N. Y. 148), to make the special partner liable, as a general partner, for all the engagements of the firm. (1 R. S. 763, § 8.) The personal liability of Abendroth was thus clearly established. His main defense now rests upon voluntary proceedings in bankruptcy instituted by Wundrum against his copartner Griffith in the Distriet Court of the United States, which are claimed to have had the effect of estopping the assignors of the plaintiff from setting up the liability of Abendroth as a general partner, and of an adjudication binding upon them that no such liability existed. This branch of the defense presents the only serious questions in the case.

The firm of Griffith