4 FIRST DEPARTMENT, MARCH TERM, 1893. a new member, the defendant, Herman Moschowitz, and the firm name changed to Moschowitz Bros. No new capital was contributed by the incoming member, and the remaining assets and property of the firm of Moschowitz & Russell were used by the new firm, and new goods and merchandise were purchased with the proceeds of such assets and property, and the same were indiscriminately used in the business of the copartnership of Moschowitz Bros. In February, 1882, McCall began an action in the Court of Common Pleas against his copartners, the Moschowitzes, for a dissolution of said firm, an accounting, the appointment of a receiver and the issuance of an injunction. In March, 1882, Schamu M. Moschowitz was appointed receiver, and under the orders of the Court of Common Pleas continued to do business. In January, 1885, an interlocutory judgment was entered in this action, and the defendants appealed therefrom. Pending this appeal, said McCall died, leaving a last will and testament by which he appointed his widow his executrix, who was substituted in said action in the Common Pleas. In January, 1888, this action was commenced by Elizabeth L. Macdona, as executrix of Mary A. Russell, deceased, against Schamu M. Moschowitz, Herman Moschowitz and Laura S. McCall, as executrix of James McCall, deceased, and Schamu M. Moschowitz, as receiver of the property and effects of Moschowitz Bros., and, after alleging the facts hereinbefore stated, and that Schamu M. Moschowitz was insolvent, demanded judgment that the judgment theretofore rendered in her favor in her suit against Schamu M. Moschowitz, as surviving partner of the firm of Moschowitz & Russell, be declared and adjudged to be a lien upon the assets of the business of Moschowitz & Russell and Moschowitz Bros., carried on after the death of Mary A. Russell, and of the property and assets of Schamu M. Moschowitz as receiver; and that the lien or claim of the defendant, Laura S. McCall, as executrix, be adjudged and declared to be inferior and subordinate to the lien of this plaintiff upon said assets; and that the lien or claim of any of the defendants in this action, creditors of the business carried on by the firms of Moschowitz & Russell and Moschowitz Bros., be declared to be inferior to the rights, claims and lien of this plaintiff in and to said assets; and that the judgment recovered by this plaintiff against Schamu M. Moschowitz be paid out of the funds in his hands so far FIRST DEPARTMENT, MARCH TERM, 1893. as the same would go toward the liquidation of said judgment; and that an injunction issue, and that the plaintiff have judgment against the defendants for $. The defendant, Schamu M. Moschowitz, answered, denying any copartnership with McCall, admitting the carrying on of the business of Moschowitz & Russell, with the property and assets of said firm, denying that the business formerly carried on was continued without any additional assets or capital, alleging that said business was carried on rightfully, and setting up as a bar the judgment obtained in the action of the plaintiff against Schamu M. Moschowitz above referred to. The defendant, McCall, answered, denying any knowledge or information sufficient to form a belief as to most of the allegations contained in the complaint, and alleging that at the time of the death of Mary A. Russell, the firm of Moschowitz & Russell became and was dissolved, and that Schamu M. Moschowitz, who became and was the owner of all said property, etc., sold and disposed of the same, and was allowed by the executrix of the will of his said deceased partner, without restriction or interference, to sell or otherwise dispose of the same, and that for the interest or claim of said executrix for the share or interest of said deceased partner, she, on the 4th of January, 1884, recovered a judgment against Schamu M. Moschowitz, as alleged in said complaint, which was afterwards modified, but that no lien or charge upon the assets of the firm was created or established by said judgment or otherwise, and that said assets and property had prior thereto been lawfully disposed of by the surviving partner, and upon information and belief claiming the funds in the hands of the receiver. The issues were thereupon tried before the court without a jury at Special Term and before the decision, the plaintiff Macdona having died, an order was made reviving and continuing the action in the name of John J. Russell as administrator with the will annexed of Mary A. Russell, deceased. And a judgment was subsequently entered that said John J. Russell, as administrator, recover of the defendant Laura S. McCall, executrix of the last will and testament of James McCall, the sum of $22,435.49, with interest from the 1st of May, 1880, to the 16th of June, 1892, in the sum of HUN-VOL. LXVIII. 7 FIRST DEPARTMENT, MARCH TERM, 1893. $16,328.11, and costs and allowances duly adjusted at $919.27, making in all $39,682.87. From this judgment the present appeal is taken. Certain irregularities are claimed in reference to the proceedings relating to the findings of fact by the court herein; but in view of the conclusion at which we have arrived upon the main question involved, it becomes unnecessary for us to consider that point. The principal question which is presented upon the foregoing facts is as to the right of the plaintiff to maintain this action against the defendant McCall, after having entered a money judgment against Schamu M. Moschowitz in the action brought by Elizabeth L. Russell, as executrix of Mary A. Russell against him for an accounting, and for a judgment for any amount which might appear to be due from him on such accounting, it being claimed upon the part of the appellant that the representative of the deceased partner, Mary A. Russell, by prosecuting the action for her share in the copartnership assets against the surviving partner Moschowitz alone, is barred from suing him again, joining McCall with him upon the same cause of action, because the plaintiff's right of action herein is merged in the judgment recovered against Moschowitz, the survivor; and because the representative of the deceased partner, having recovered a personal judgment against the surviving partner for the value of the interest of the decedent in the firm's estate, cannot afterwards claim against any person who took title to such assets from such survivor. The learned court below in the disposition of this case in its opinion states that at the time the action for an accounting was brought the plaintiff therein was ignorant of the alleged misappropriation by Moschowitz and McCall, and being so ignorant by bringing such action "she thereby made no election, for until she was made aware of the misappropriation there was no basis for an election. But even if she were fully advised of what had transpired, her action against the surviving partner would have been no bar to the present action. She had no legal interest in the assets of the late firm; Moschowitz by virtue of his survivorship became the legal owner of these assets, while Miss Russell's executrix had but an equitable interest in the distribution of any surplus remaining after the payment of the debts. (Williams v. Whedon, 109 N. Y. 338.) FIRST DEPARTMENT, MARCH TERM, 1893. The action which the plaintiff brought against the surviving partner Moschowitz was, therefore, an action to ascertain the amount and value of the deceased partner's share of the assets of the late firm after the payment of its debts. It was in effect an action for the accounting which must precede any recovery against the surviving partner personally. It is clear, therefore, that the rules which govern with regard to trustees of trust funds are inapplicable. There the cestui que trust must elect whether to hold the unfaithful trustee personally responsible or to follow the trust fund into the hands of other persons. He cannot do both. Here there was no such trust fund. The assets did not belong to the estate of the deceased partner. Nor did the surviving partner hold the assets as an ordinary trustee for such estate. The estate had a right to require from him the proper liquidation of the business, the application of the assets to the payment of the partnership debts and the division of the surplus. These are the rights which the law confers upon the representatives of the deceased partner, and these the obligations which it imposes upon the surviving partner. (KКпох v. Gye, L. R. [5 Eng. & I. App.] 656.) ""The surviving partner may be called,' observed Lord WESTBURY, in the case cited, 'so far as these obligations extend, a trustee for the deceased partner. There is surely no inconsistency between the assertion of these rights and a subsequent action to compel the restoration of the partnership estate, by transferees in complicity with the surviving partner. Such an action is not antagonistic to the ordinary action for an accounting against the surviving partner, but is really in harmony with it, and even in aid of it. Its object is the same, namely, to secure the due application of the partnership assets in accordance with the rights of the deceased partner and the obligations of the survivor. If such assets are still in existence in specie, the court will require such application in accordance with equitable principles. If, however, such assets have been converted and misapplied, then the rights of the deceased partner can be adequately secured only by judgment in personam against each and every person who has shared in the misappropriation of the partnership estate. In other words, the representative of the deceased partner may, by her action for an accounting against the surviving partner, secure a liquidation of the affairs of the firm, and have the FIRST DEPARTMENT, MARCH TERM, 1893. balance coming to the estate judicially ascertained. But such representative may also require the application of the partnership assets in accordance with her rights, whether such assets are in the hands of the surviving partner alone or jointly with some other person who, without parting with value, simply shares the surviving partner's possession with full knowledge of his obligations. In case, however, the assets have been converted, and cannot, therefore, be specifically applied in accordance with the partnership rights and obligations, it will naturally necessitate a personal judgment against those who were thus jointly in possession of the property." It seems to us that in the foregoing reasoning the court lost sight of the fact that the representative of the deceased partner not only brought her action for an accounting, but also for a personal judgment against the surviving partner for the amount which might be found due from him, and that the judgment entered was simply a money judgment against the surviving partner for the amount of assets for which he had been found to be accountable; and that the representative of the deceased partner having chosen to treat the surviving partner as a debtor to the extent of the interest of the deceased partner in the assets of the firm, he thereby affirmed his title to the same and his right to dispose of them for his own account. It is a familiar principle that a party cannot recover from a person who has obtained possession of property, the purchase price of that property, and in addition thereto in a separate proceeding, impeach the title of persons who have come into the possession of that property through the original possessor. In the action brought by the representative of the deceased partner a trust upon the assets of the firm might have been impressed, and such seems to have been the theory upon which the present action was commenced. But having failed to do this, having treated the surviving partner as a debtor to the full amount of the assets, and obtained judgment against him for that amount, it is difficult to see how it is possible to pursue other people who have become possessed of those assets through the instrumentality of the surviving partner. What is the result arising from the judgments which have been entered in respect to this property? The plaintiff in this action has a judgment against Schamu M. Moschowitz requiring him to deposit $44,000 in a trust company to meet the liabilities of the firm of |