(concurring). Confirming, as we do, the finding of the special term that the limited partnership was insolvent at its expiration, April 30, 1891, the conclusion necessarily follows that the general partnership which succeeded to its assets and liabilities could not devote any part of such assets in payment of the amount originally contributed by the special partner, as against either creditors of the limited or the general partnership. And this is so because the general partnership was not indebted to the special partner of the limited partnership, but was indebted to both prior and subsequent creditors, and such creditors could not be deprived of any portion of the assets at the instance and for the benefit of a third party not a creditor. While the plaintiffs, as creditors of the general partnership, could not have effectually complained of an honest effort by its members to pay the creditors of the limited partnership in preference to him, they did, and do, have the right to insist that no part of the assets of the firm of which they are creditors shall be turned over to one who has not an enforceable claim against the general partnership.
I concur with Mr. Justice O’BRIElSr for an affirmance of the judgment.