Lewishon v. Drew

■ As this case is now presented it appears that the plaintiffs were creditors of the firm of E. Drew for goods sold and delivered. That firm was composed of Elizabeth Drew and the present defendant, William H. Drew. She died, and after her decease the surviving partner formed another partnership with the defendant, Charles W. Drew, and they after that carried on business with a considerable portion of the assets and property of the preceding firm of E. Drew. The plaintiff’s debt had been guaranteed by the defendant, William H, Drew, and a judgment, was *469recovered by the plaintiffs on that guaranty, on which execution was issued and returned unsatisfied. But no judgment was ever recovered by the plaintiffs against the firm of E. Drew, nor against William H. Drew as the surviving partner. That was an important omission, for upon the judgment recovered on the guaranty, which was merely the individual obligation of the guarantor, only his own property could be appropriated by the execution for its payment; while upon a judgment against him as surviving partner, the assets and property of the firm coidd have been levied upon and sold to satisfy an execution issued upon it; and that might very well have resulted in the payment of the plaintiff’s debt. This was a substantial and probably an adequate remedy for its recovery ; and until it shall have been resorted to and failed, the remedy in equity does not seem to be available. By that remedy the assets and property of the old firm, not capable of being discovered and appropriated to the payment of an execution, could be secured and applied to the payment of the plaintiff’s debt. But until the legal remedy has been exhausted this equitable action cannot be sustained. That is now the well-settled rule applicable to actions of this description. (Dunlevy v. Tallmadge, 32 N. Y., 457; Ocean Bank v. Olcott, 46 id., 12; Allyn v. Thurston, 53, id., 622; Estes v. Wilcox, 67 id., 264.)

The action was commenced and tried upon a somewhat different theory. But that proving unfounded, in part at least, the complaint was amended; and by the amendment it has become an action by the plaintiffs as creditors to reach the assets of their debtors, and in that way to obtain satisfaction of their debt, without first exhausting the remedy provided by law for its recovery by a judgment .upon it, and an execution against the property of their debtor. They have failed in the proceeding taken by them. Whether costs should have been allowed, was a matter which under the circumstances was addressed to the discretion of the referee, and nothing in the case shows this authority to have been unreasonably exercised.

. The judgment should be affirmed.

Judgment affirmed.