Determination reversed and judgment of Municipal Court affirmed, with costs in this court and in the Appellate Term, on the dissenting opinion of Whitney, J., at the Appellate Term (reported in Phillips v. Mendelsohn, 67 Misc. Rep. 142).
SCOTT, J. (concurring):
Since I wrote the prevailing opinion for the Appellate Term, in Morrisey v. Berman ( 47 Misc. Rep. 586), I have taken occasion to re-examine and reconsider the question therein passed upon, and find myself compelled to revise the conclusion at which I then arrived. While it is undoubtedly true, as stated in United States Nat. Bank v. Underwood ( 2 App. Div. 342), that "where a partnership is dissolved and one partner takes the partnership property and assumes and agrees to pay the partnership debts, he becomes the principal debtor as to creditors, while the other partner occupies the relation of a surety, not only as between the partners themselves, but as to all others who have had dealings with the firm to whom notice of the new arrangement has been given;" yet, as pointed out by Mr. Justice Whitney, a principal debtor and a guarantor may be joined as defendants in the same action unless the guaranty is of collection, which clearly the guaranty of a retiring partner is not. I am now convinced that in Morrisey v. Berman we pushed the consequences of the changed relations of the partners too far, and for that reason I concur in the reversal of the present determination.