(dissenting.) . This case does not depend upon the question whether the bank could recover the note against the survivor out of the as*848sets of the firm estate, but whether the survivor could, under the circumstances, lawfully provide for its payment to the bank. It may be conceded that, without the assignment, the bank could not recover; but if, before-the assignment, the survivor could have paid himself out of the firm property, it would not be a fraud for him to transfer by the assignment his right to-the bank. The note given by Pierson the survivor to the National Commercial Bank was his individual note, simply because the firm had ceased to exist. The property of the late firm, by the death of the senior partner, became the survivor’s individual property; that is, his legal title to it was absolute and complete.- Nehrboss v. Bliss, 88 N. Y. 600; Williams v. Whedon, 109 N. Y. 333, 16 N. E. Rep. 365. Because of the insolvency of the firm, the firm creditors had equities to prevent such a disposition of it by him as would operate as a fraud upon them. But, as shown in the case last cited, his absolute legal title gave him, for the purposes of the proper settlement of the firm business, absolute dominion over the property. Although the note which he gave the bank was his individual note, nevertheless he gave it to-obtain money to pay firm debts, and he did pay such debts with all the money which he obtained upon the note except the portion which he refunded-to the bank, thus reducing the amount of the note. He gave the note, therefore, in the course of the honest settlement of the business of the late firm. As the property was his for the purposes of settling the firm business, he-gave the note for the same purpose, and was protected in giving it by his-ownership of the firm property. Because of that ownership he could, upon realizing the money upon the firm- assets, reimburse himself in the amount of his private advances upon the firm debts, and of course with the money thus obtained pay the bank the amount due upon the note. The operation of paying firm debts from the proceeds of firm assets would then, and not until then, be complete with respect to the debts paid from the proceeds of the note. No firm creditor could intervene to prevent such a completion of the transaction, because the completed transaction would have achieved an: honest result, and would in no way have operated as a fraud upon him. The surviving partner, as well as the firm creditor, is entitled to have all the firm assets applied to the payment of the firm debts. True, he may pay the firm debts from his individual property, but when it is plain that he intended nothing of the kind, equity, which scorns trickery, will not impute such an intent to him. Equity will perceive the mistake under which he acted, and, in the absence of estoppel, or anything like it, will assist him in retrieving his mistake. Here the junior Pierson should be permitted to reimburse himself from the firm assets in the amount which he mistakenly paid upon the firm debts. This was distinctly said in Haynes v. Brooks, 8 Civil Proc. R. 106, 113, (at special term.) The case was affirmed, (42 Hun, 528, 116 N. Y. 487, 22 N. E. Rep. 1083,) upon other grounds; but the proposition follows from the principles already stated. It was, in substance, so held in Fitzpatrick v. Flannagan, 106 U. S. 648, 1 Sup. Ct. Rep. 369; otherwise the firm estate would be so much the richer by the honest eagerness of the survivor to hasten the payment of the firm debts, and the survivor injured.
Assuming the right of the survivor to reimbursement from the-firm assets, we proceed to consider whether he could not protect that right in the general assignment. By the assignment he directed the assignee to pay the bank out of the firm assets. The bank was the creditor of Pierson, individually, but not as survivor. But it was competent for Pierson to direct that the reimbursement from the-firm assets, which was due to himself, should be made to the bank, not in satisfaction of any debt from the firm to the bank, but in satisfaction of Pierson’s lien upon the firm assets, or right to protection from them. Pierson, in effect, said to the assignee: “Pay the bank, and thereby pay me.” B. owes A., and C. owes B. B. may direct C. to pay A.; and, if C. does it, both A. and B. are paid. Moreover, the assignee should *849complete the work his assignor began and left unfinished, namely, the payment of the partnership debts to Durant and others out of the firm assets. Pierson did not go so far as to complete the payment out of the firm assets. He personally made the payment for the firm before he had realized upon the firm assets, and left the work of such realization, and making the firm make the payment, unfinished. What the survivor could lawfully do, he could lawfully direct the assignee to do, and the assignee, by obeying the direction, will simply complete the payment to Durant and others out of the firm assets. The fact that the bank, -before the direction in the assignment, had no equitable claim upon the firm assets, but only against Pierson personally, in no wise makes it fraudulent for Pierson to direct that the bank shall be paid instead of himself. It may be conceded that, without the assignment, no right of subrogation existed in favor of the bank to the property which protected Pierson in making the note. If Pierson had been surety for the firm in making the note, the bank would, if necessary for its protection, have been entitled to subrogation. But every right which subrogation could confer in such a case Pierson has now attempted to confer by the assignment. The firm ought to pay Pierson or the bank; and Pierson has waived his right, and directed that the bank should have the benefit of it. It is difficult to see wherein such an attempt to do justice is fraudulent. Again, whether an assignment is fraudulent is usually a question of fact. When the dispositions made in an assignment are certain to res.ult in defrauding a class of creditors; the law, assuming that every man intends the natural and obvious consequences of his acts, imputes the fraudulent purpose which is sure to be accomplished, and will not permit a jury to hold otherwise. But in this case it is respectfully submitted that the plaintiff’s claim is unconscionable; that the bank’s claim under the assignment is meritorious; that the survivor’s preference to the bank is consonant with scrupulous honor and that to carry out the assignment with respect to the bank is to do right. The plaintiff’s claim, if within the strict letter of the law, offends its spirit. Equity respects the substance, rather than the name, of a transaction. It should not condemn this assignment as fraudulent. I advise a reversal of the judgments in both actions.