I cannot agree with the opinion of Smith, P. J. I think that the report of the referee and judgment entered thereon was as favorable to the defendant as the facts would justify.
The original copartnership was formed in 1873 with a capital of $3,680, of which each contributed one-half. The defendant *842attempted to and did continue' that, business with the firm assets as they were at the time his partner, Mr. McG-ibbon, died. At that time there was an excess of. money or property in the firm from what there .was at the time that the business was started and some more than when the surviving partner closed the business in 1906 and took-unto himself all that was left of stock and capital and otherwise, The defendant did not pretend in any way that the additional interest that he had. in the firm in 1884 was - in any way a loan by him to the copartnership. It was hot. It was simply permitting the business to remain as. it was. There was no one in existence who could authorize -him to loan that amount of money to the firm and if he chose he could probably have taken that amount out and equalized the-shares. At any rate he did not do it. ■ He did loan to the copartnership or to .himself as survivor his individual money at different times and took interest for some loans.
It is stated in Rodgers v. Clement (162 N. Y. 422, 425): “If the moneys advanced by the plaintiff to- the firm were contributions of capital or additions to plaintiff’s capital, then he was not entitled to interest on the same, since he must rely upon the profits of the business to compensate him for the investment, unless- there was a special agreement between the partners that interest should be allowed. (Johnson v. Hartshorne, 52 N. Y. 173; Jackson V. Johnson, ll Hun, 509; affd., 74 N. Y. 607; Sandford v. Barney, 50 Hun, 108; In re James, 146 N. Y. 106; Cheever v. Lamar, 19 Hun, 130; Stoughton v. Lynch, 2 Johns. Ch. 209; Oollyer on Part. § 318; Lindley on Part. 389.)
.“But, on the other hand, if the moneys so paid or advanced by the plaintiff for the use of the.firm were in fact loans, and the plaintiff as to such advances was a -creditor of the firm, he stands upon the same footing as any other creditor with respect to the right to be allowed interest upon the accounting.. A partner may loan money to the firm of which he is a member, and when he does his right to interest is to be determined in the same way as that of . any other creditor.- In such- cases the general rule is to allow interest upon the advances, although there was no express agreement by the firm to pay it, in the absence of some agreement to the contrary, express or implied. *843The right to interest, or an agreement to pay . or allow it, is to he impliéd in such cases without any express promise, as in like transactions between parties holding no partnership relations to each other.” •
The difference between the amounts belonging to defendant and plaintiffs in the firm property at the time of the death of Mr. McGribbon had substantially disappeared at the time that the defendant without any'one’s consent took the entire stock and assets of the firm and the referee has allowed him sufficient to make it equal. Substantial equity seems to have been done in. an awkward situation by the referee.
I think the judgment should be affirmed, with costs to the respondents.
Judgment modified as per opinion and as modified affirmed, without costs to either party. Judgment to be settled, upon % notice, by Sewell, J.