Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.
1. We think the evidence amply supports the Referee's findings and his legal conclusion that a partnership existed.
2. Appellant, however, contends that, if there was a partnership, then the bankruptcy court had no power, without appellant's consent, to administer the partnership assets. We agree. Section 5, subs. a and i of the Bankruptcy Act, 11 U.S.C.A. § 23, subs. a, i, so far as pertinent, read as follows:
"a. A partnership * * * may be adjudged a bankrupt either separately or jointly with one or more or all of its general partners.
"i. * * * In the event of one or more but not all of the general partners being adjudged bankrupt, the partnership property shall not be administered in bankruptcy, unless by consent of the general partner or partners not adjudged bankrupt; but such general partner or partners not adjudged bankrupt shall settle the partnership business as expeditiously as its nature will permit and account for the interest of the general partner or partners adjudged bankrupt."
In other words, the bankruptcy of one partner works a dissolution of the firm, and the solvent partner (here appellant) must promptly wind it up.*fn1 As this is a New York partnership, under New York Partnership Law, Section 71, McK.Consol.Laws, c. 39, the assets must be applied by appellant to liabilities in the following order of priorities.
"I. Those owing to creditors other than partners,
"II. Those owing to partners other than for capital and profits,
"III. Those owing to partners in respect of capital,
"IV. Those owing to partners in respect of profits."
Here the partnership was not adjudged a bankrupt. We reject appellee's contention that the petition in bankruptcy, which named "William Friedman doing business under the name and style of Faultless Press," constituted a petition against the partnership or that the adjudication, also thus naming the bankrupt, adjudicated the partnership. Nor has appellant overtly or impliedly consented to the administration in bankruptcy of the partnership property.*fn2
It follows that the bankruptcy court cannot properly administer those partnership assets. See Marnet Oil & Gas Co. v. Staley, 5 Cir., 218 F. 45, 48-49. This is not a case "where the originally proceeding was against a firm, and, upon the discovery of a partner not originally named or known, he was brought in as one of the members of the firm"; In re Kaufman, 2 Cir., 176 F. 93, 94. A new or amended petition in bankruptcy, naming appellant as partner, to be followed by the partnership's adjudication, would be necessary if bankruptcy jurisdiction of the partnership assets were to be maintained; in that event, appellant would have an opportunity "to controvert the facts alleged in the petition," and a right to a trial "on the question of * * * any act of bankruptcy alleged to have been committed"; In re Kaufman, supra.*fn3 See also In re Fuller, 2 Cir., 9 F.2d 557; 1 Collier, Bankruptcy (14th Ed.) 740-741; cf. In re Samuels, 2 Cir., 215 F. 845; cf. Benitez v. Bank of Nova Scotia, 1 Cir., 110 F.2d 169, 172, 173-174. In Kaufman-Brown Potato Co. v. Long, 9 Cir., 182 F.2d 594, apparently the objecting partners had not objected to the bankruptcy court's administration of the partnership assets until after they had been sold. But here, as soon as appellee asserted the existence of a partnership, appellant answered alleging lack of jurisdiction of the property and denying the partnership status.*fn4
Having regard to the present liberal construction of pleadings, we read appellant's answer to the May 10th petition as (a) denying the existence of a partnership; and (b) in the alternative, asking that, if it should be found that a partnership existed, appellant surrender possession of the partnership assets so that appellant might ...