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on the firm property for a firm debt, and a demand for the statutory exemption maile by one or two of the partners, and the others objecting to the exemptions being made. There would exist no right of selection by the demanding partners, and no power to set off by the officer, and hence there could be no exemption under these circumstances. The simple machinery of the statute is inapplicable and inadequate to the solution of such complications.
The right to the exemption, therefore, manifestly depends upon the power of selection, and this power must relate either to property of which the execution-debtor is the absolute owner, or to property of which he has the possession and actual control as against the officer holding the execution.
But the court below held that where all the partners demanded the exemption, they were, thereby, all consenting to the exemption; and it should, therefore, be allowed. The difficulties above sug. gested as to a single partner, or as to some demanding and others objecting to the exemption, arise and are equally potential here. The statute gives no countenance to the idea that there is to be a joint ownership in the property after it is exempted and set off ; nor, as has been said, does it contemplate a partitioning into severalty of that which is joint property, in order to get at the property that may be exempted; and in order to get at the joint property to be exempted, where all were demanding it, the consent of all the partners would have to be given to each selection made by any one of them, before it could be exempted and set off. In short, where all were demanding it, the exemptions could only be made with the mutual agreement and consent of all the parties, as to the selection of the joint property to be exempted. The right to make such consents and agreements, would imply either an actual ownership of the property by the partners, or a possession coupled with an absolute power of disposition.
In this case, inasmuch as the partnership property had been seized in execution for a firm debt, before the demands for exemption were made, the legal effect of this seizure upon the property, must be considered in order to ascertain whether a right of slection and exemption by consent of the partners, remained after the seizure.
The law of partnership constitutes a system by itself, which is inapplicable to any other legal relation.
In speaking “of the origin and purpose of partnership,” Mr.
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Parsons says: “If partnership offers advantages, it also exposes those who enter into it to peculiar liabilities. The safety of society requires this. If every partner were not held absolutely for the whole amount of the debts of the firm, by whichsoever of the partners they were contracted, a wide door would be opened for fraud and public loss. It is, however, a very common thing for persons to try, in a vast variety of ways, to gain all the advantages and profits of partnership, without encountering these liabilities, or to cscape from these liabilities when the loss has accrued. This the law forbids, and as far as it can, prevents; and, it must, therefore, be always ready to meet the contrivances, evasions and disguises resorted to by ingenious men:" Parsons on Partnership 4. One of the familiar rules in partnership is, that the partnership property and assets are primarily liable for the payment of partnership debts; and no private creditor of a partner can take by his execution, anything more than that partner's share in whatever surplus remains after the partnership effects have paid the partnership debts. The rule in equity on this point, is thus admirably stated by Mr. Justice STORY; “ Joint property is deemed a trust fund primarily to be applied to the discharge of partnership debts, against all persons not having a higher equity. A long series of authorities has established this equity of the joint creditors, to be worked out through the medium of the partners, that is to say, the partners have a right, inter sese, to have the partnership property first applied to the discharge of the partnership debts, and no partner has any right, except to his own share of the residue, and the joint creditors are, in case of insolvency, substituted in equity to the rights of the partners as being the ultimate cestuis que trust of the fund to the extent of the joint debts :” Story's Eq. Juris., sect. 1253. In the fact, that in connection with this peculiar system, public policy and the prevention of great losses to society require cach partner to be held absolutely for the whole amount of the firm debts; and equity, as to the partnership property, regards the partners as trustees holding it for the benefit of their creditors; we find a further reason for presuming that the exemption laws were not intended to apply to or affect partnership property; and we feel warranted in holding, that the levy of the execution in this case, was an absolute appropriation, in law, of the property levied on to the payment of a partnership debt, and
that these partners, being insolvent, had no remaining interest either legal or equitable in the property.
They could not, therefore, after the levy, acquire a right of exemption in the property by mutual agreement or otherwise, without the consent of the firm creditors. And while a court of equity, looking alone to the rights of all the creditors, might, in a case requiring it, have controlled the proceeds of the sale under the levy; it would not, on general principles, have had power to interfere to prevent a sale, or to deprive the plaintiffs of any legal advantages that their levy gave them. It follows that the law having seized and appropriated the property in question to its legitimate purpose—the payment of partnership debts-it was not within the power of a court of equity to take the proceeds of the property from the possession of the law, which held them for a specific purpose, and appropriate them to another.
Although as we have above found the partners were not, and could not be entitled to exemptions, either in severalty, or jointly out of the partnership property, the court below found that the partners were entitled to five hundred dollars each out of the proceeds of the property and declared accordingly.
In this there was error. We think the judgment creditors and not the partners were entitled to the money arising from the sale.
Judgment reversed and cause remanded for further proceedings.
Court of Common Pleas of the City of New York.
JONATHAN N. HAVENS v. CHRISTIAN KLEIN. Where a common owner of two tenements, the windows of one of which overlook the yard of the other, and receive light and air therefrom, its shutters swing out over such yard, and access from its fire-escapes which overhang the yard being had to such yard, serers the same by conveyances to different persons, an casement in favor of the tenement so overlooking the other, it being the one first conveyed, is created in respect to light and air, the swinging of the shutters, and access to and from the fire-escapes.
Such easement is an apparent one. The grantee of the servient tenement, the one later conveyed, is deemed to have actual notice of such easement, and takes his title subject thereto.
In such case it is immaterial whether such severance be by deed or mortgage, inasmuch as by foreclosure the mortgage is ripened into a deed.
PLAINTIFF was the owner of premises in New York city, situated on the north side of 50th street, sixty feet west of Lexington avenue, and being twenty feet in width by forty-nine feet deep. Defendant owned premises on the west side of Lexington avenue, forty-nine feet north of 50th street, twenty feet in width and eighty feet deep. A house on plaintiff's lot (a French flat), extended the whole depth of his lot. A house on defendant's lot, likewise a French flat, extended sixty feet deep; so that the northeasterly corner of plaintiff's house impinged the southwesterly corner of defendant's house.
Plaintiff's house had five stories, with three windows in each, looking out over the yard belonging to defendant. These windows each bad shutters which swung out over defendant's said yard; and in the angle of the houses were built fire-escapes for each story, for the mutual use of each house, access thereto being had from the windows of the same.
These premises, in the state described, had at one time been owned by a common owner, one Buddensick, who while owner of both lots had, in 1871, built the houses in the manner stated. He thereafter mortgaged both, executing the mortgage upon the 50th street house first. It was also recorded first. This mortgage contained the usual grant of said premises with all the "rights, privileges, hereditaments and appurtenances thereunto belonging." Both mortgages were in time foreclosed; and under the decrees in foreclosure and sundry mesne conveyances the title to the 50th-street house became vested in plaintiff, that to the Lexington avenue house in defendant.
In November 1874, defendant built in his said yard, close to plaintiff's house, but upon his own land, a scaffolding forty-five feet high, upon which, opposite each of plaintiff's windows, he affixed boarding flat up against the wall of plaintiff's house, in such a manner that none of the shutters of plaintiff's rear windows could be opened; access to the fire-escapes out or the windows was prevented, and all light and air through the windows excluded, and the value of the house in that state as an inhabitable dwelling reduced to almost nothing.
Upon these facts the plaintiff brought this action to restrain the defendant from continuing such obstructions, and to have his right to light and air through such windows from defendant's land, and to swing his shutters on defendant's land, and to have access undisturbed to said fire-escapes declared and enforced, and for a perpetual injunction,
According to the practice of the state of New York, an order to show cause why an injunction should not be granted pending the action was obtained, with a temporary injunction meantime, and on the return of such order defendant appeared to show cause and inoved to vacate the temporary injunction, plaintiff moving to make it permanent.
Nelson Smith and John Brooks Leavitt, of counsel for plaintiff, cited : Lampman v. Mills, 21 N. Y. 505; Voorhees v. Burchard, 55 N. Y. 98; Butterworth v. Crawford, 3 Daly 57, s. C. 46 N. Y. 349; Webster v. Stevens, 5 Duer 553; Eno v. Del Vecchio, 6 Duer 17; Hendricks v. Stark, 37 N. Y. 106; Compton v. Richards, 1 Price 27; Pyer v. Carter, 1 Hurlst. & N. 916; Rivieri v. Bower, 1 Russell & Milnes 24; 3d Blackst. 218; F. N. B. 183; 2 Rolle's Abr. 140; Wash. on Easm. 492, 575–7; 2 Story Eq. § 925–6; 1 Fonbl. Eq. 3 note; 2 Wash. Real Prop. 316–19; Myers v. Gemmel, 10 Barb. 543; Story v. Odin, 12 Mass. 157.
Julius J. Frank, of counsel for defendant, cited : Mahan v. Brown, 13 Wend. 261; 2 Wash. Real Prop. 316–319; Pickard v. Collins, 23 Barb. 444; Bury v. Pope, Cro. Eliz. 118; Palmer v. Wetmore, 2 Sanf. 316; Parker v. Foote, 19 Wend. 309; Myers v. Gemmel, 10 Barb. 537 ; Hoffman v. Armstrong, 46 Barb. 337; Relyea v. Beaver, 34 Barb. 547; People v. Central Railroad Co., 42 N. Y. 283; Collier v. Pierce, 7 Gray 18; Pheysey v. Vicary, 16 M. & W. 484; Johnson v. Jordan, 2 Met. 23+; Cartrey v. Willis, 7 Allen 364; Randall v. McLaughlin, 10 Allen 366; Brakely v. Sharp, 1 Stockton Ch. 9; s. c. Id. 206.
Daly, C. J.-Much of the law discussed upon this motion has in my judgment no bearing upon the question which arises in the
It is settled in this state that no right to the use of light and air in a building overlooking the land of another is acquired by use, enjoyment or pre-emption. It can pass only by express grant or covenants, and will not pass by implication of a grant (2 Washburn on Real Property 319, 3d ed. 839), unless it is necessary to the enjoyment and was clearly intended from the circumstances existing at the time when the conveyance was made: Voorhees v. Burchard, 55 New York 98; Comstock v. Johnson, 46 Id. 6, 15; Uuttermeyer v. Albro, 18 Id. 48; Nicholas v. Chamberlain, Cro.