p. 316tract, to deduct therefrom his advances, and afterwards to pay over.to the parties interested in the profits. Various allegations of improper conduct on the part of the trustee were met by him as stated in the opinion. A temporary injunction had been obtained, which plaintiff now moved to continue, and that .a receiver be appointed.
Albert Cardoso, for the motion.
Capron & Lake, Chapman & Hitchcock, Paris G. Clark, and John E. Burrill, opposed.
I. The contract is made with Hackley, and not with his assigns, and calls for the performance of personal services on his part, and cannot be assigned without the consent of the Corporation and of the sureties.II. The plaintiff never acquired any interest in the contract, but merely became entitled to a proportionate share of the net profits to be realized therefrom.m. The relation of partnership was not created between the plaintiff and the defendants in’ respect to the contract. Even if there was, there was none between plaintiff and defendants, because a new partner cannot be brought in without the consent of all the partners. (1 Collyer on Part., ch. 1, §§ 1-8; Story on Part., § 5.) The plaintiff may be jointly interested in Hackley’s share of the profits, and not be a partner with others interested. (Putnam a. Wise, 1 Hill, 234 ; Exp. Barrow, 2 Rose. Cas., 254; 17 Johns., 535 ; 7 Pick., 235 .)IV. The motion for the injunction should be denied, and the preliminary injunction dissolved. 1. It does not appear, by the complaint, that the relief to which the plaintiff will be entitled consists in restraining the commission or continuance of any act which will produce injury to the plaintiff (Code, § 219.) 2. It is not alleged that the defendants have done or intended any act, the commission of which during litigation would injure the plaintiff. (Code, § 219; Hovey a. McCrea, 4 How. Pr., 31 ; Bayaud a. Fellows, 28 Barb., 451 ; Woodward a. Schatzell, 3 Johns. Ch., 412 .) 3. It is not alleged that the defendants are insolvent, or that the amount to which the plaintiff may be entitled is endangered. (Newbury a. Newbury, 6 How. Pr., 182 ; Balcom a. Julien, 22 Ib., 349; Power a. Alger, 13 Abbott' Pr., 295; West a. Swan, 3 Edw., 420 .)
p. 3174. If the parties interested in the working of the contract are to be regarded as partners, the plaintiff is not entitled to an injunction. Equity never interferes between partners to compel a continuance of copartnership, by decreeing a specific performance, or by enjoining a breach of the agreement, or to compel an accounting, or for any other purpose, save with the view and object of granting a dissolution. (Marshall a. Coleman, 2 Jac. & W., 266; Forman a. Humfray, 2 Ves. & B., 329; Lascombe a. Russell, 4 Sim., 8; Knebell a. White, 2 Y. & Coll., 15; Story on Part., § 229; Hall a. Hall, 3 Eng. L. & Eg., 191.)Y. The plaintiff is not entitled to a receiver. 1. This case is not within section 244 of the Code. 2. Receivers are never appointed pendente Ute, except for the purpose of a dissolution of the unity of interest in the property, and to enable the court to close and wind up the business affected by the receivership. (Story on Part., §§ 228, 231; Oliver a. Hamilton, 2 Ans., 453; Waters a. Taylor, 15 Ves., 10; Henn a. Walsh, 2 Edw., 129 ; Garretson a. Weaver, 3 Ib., 385; Hall a. Hall, 3 Eng. L. & Eg., 191.) 3. The court will not appoint a receiver with the view and for the purpose of carrying on or continuing the business. (Jackson a. De Forest, 14 How. Pr., 82 , 83; 1 Barb. Ch., 662 ; Story on Part., §§ 228-231; West a. Swan, 3 Edw., 420 .) 4. In cases where a receivership will be' ruinous to the defendants, and destructive of the object of the enterprise, the plaintiff must make out a case of the grossest character, to authorize the interference of the court. (Waters a. Taylor, 15 Ves., 10.) 5. Where the plaintiff will not be prejudiced by the refusal of the court to interfere, and such interference may prove disastrous to the defendants, the court will not interfere. (McCafferty a. Glazier, 10 How. Pr., 475 ; Gallatin a. Oriental Bank, 16 Ib., 253; Bruce a. Delaware & Hudson Canal Co., 19 Barb., 371 ; Hoffm. Prov. Rem., 146.) 6. The defendants have the legal title to, and are in possession of the subject-matter of the litigation, and the court will not take the property out of their hands, when the plaintiff’s interest is denied, and there is no allegation of insolvency. (Hannan a. Jones, 1 Craig & Phil., 299; Goulding a. Bain, 4 Sandf., 716 .)VI. The motion should be denied for other reasons. 1. The
p. 318'plaintiff is not entitled to the relief demanded by the complaint. 2. All the allegations of the cqmplaint on which the plaintiff bases his alleged equities are denied by the defendants. 3. The defendants are largely in advance for moneys furnished to ■carry on "the contract, and that the contract is now greatly in debt. 4. The mayor, aldermen, and commonalty are necessary parties to ,the action, and so also is Hackley."VII. The Hackley contract is an act of the Corporation of Hew York city, performed as a public trust for the public interest, and its constant execution is essential to the attainment of that end. The case, so far as the injunction is concerned, falls within the class of cases in which the court will not enjoin public officers from the discharge of public trusts merely to promote the interests of individuals. To restrain the payment of the money by the comptroller, and receipt by the trustee, is virtually enjoining the prosecution of the work, (5 Abbotts’ Pr., 41; 7 Ib., 108; 10 How. Pr., 475 ; 16 Ib., 140; 26 Barb., 301 .)If a receiver of the contract between Hackley and the Corporation of Hew York were to be appointed, its farther performance must be carried on under the direction of the court, or else its performance must be abandoned.
The inquiry arises, where are the funds to be obtained to meet the outlay necessarily required for the payment of workmen, &e., should a receiver, under the direction of the court, attempt such an enterprise ?
It is manifest, from the statement of the proposition, that such a scheme cannot be attempted without the concurrence of the majority of the parties in interest. *
The trustee might be charged, perhaps, if a proper case were made for such an application.
An injunction or receiver would be to destroy the value of the contract, unless it was so arranged that the work of cleaning the streets could continue to be performed.
The motion is made upon the complaint, not sustained by other corroborating evidence.
The trustee has fully denied all the charges of the complaint, except the allegations that he has refused to account to the plaintiff, and that other defendants have received money which
p. 319the trustee ought to have collected, and which the others had no right to receive.
There can be no doubt, on the case shown by the complaint, that the plaintiff is entitled to see the books of the trustee, and to know how he has expended the money which has come to his hands, as well as what money he has collected.
It is not suggested, however, that the trustee is irresponsible. The omission fully to answer the allegations of the complaint referred to does not disclose such turpitude or misconduct on the part of the trustee as will, under the circumstances of this case, justify this court in interfering so far as to appoint a receiver or to continue the injunction.
It is an important fact that the plaintiff represents an interest equal to one-eighth only, while the other larger interests concur in opposing the plaintiff’s application.
It may be that the plaintiff can, by taking evidence, make his case stronger to support his present application.
It is proper, therefore, to allow him to renew the motion whenever he can present such additional proof.
The motion will be denied, with leave to renew on additional evidence.
The usual costs of motion will abide the event.