Bergin v. Deering — 24 N.Y.S. 36

Majority

p. 36

(70 Hun, 379.)

BERGIN v. DEERING.

(Supreme Court, General Term, First Department.

June 30, 1893.)

Headnote

Action to Dissolve Partneeship—Rights-or Judgment Creditors.

Where copartners cannot agree on the management of the business,. • and finally consent that an action be brought to wind up their affairs through the aid of a receiver, but before bis appointment creditors of the firm recover judgments, and executions are levied by the sheriff, an order directing the sheriff to turn over to the receiver all" property taken on ex- ■ ecution should be reversed when the validity of the judgments are not impeached nor security offered for their ultimate payment.

Appeal from special term, New York county.

p. 37

Action by Edward J. Bergin against John J. Deering to dissolve the partnership of Deering, Bergin & Co. From an order granting a motion, made by George ¡N. Veritzan as receiver of said firm, to require the sheriff to deliver up certain property, which, previous to the appointment of the receiver, the sheriff had seized on executions issued on judgments obtained by appellants against said firm, Bartholomew Peck and John Mulholland, judgment creditors of the firm of Deering, Bergin & Co., appeal.

Reversed.

Argued before VAR" BRUNT, P. J., and FOLLETT and PARKER, JJ.

James Kearney, for appellants.

¡Nathaniel Levy, for respondent.

The litigants were partners, but in what business they were engaged, its extent, the amount of capital employed, or their liabilities, are not shown. It does not appear that the firm or the individual members thereof are insolvent. Indeed, nothing is affirmatively shown, except that the parties were engaged in some kind of business as partners, and disagreed about its management, but in what respect is not made known. However, they finally agreed that this action should be brought to wind up their affairs through the aid of a receiver, pursuant to which a receiver was appointed. Before the appointment was made, two creditors of the firm recovered judgments, upon which executions were issued, and levied by the sheriff. Upon motion of the receiver, the sheriff was directed to turn over to the re-ceiver all property taken on the execution. The validity of the judgments is in no wise impeached, nor was any security offered for their ultimate payment. We are unable to see any reason for depriving these judgment creditors of their legal liens for the sole purpose, so far as is disclosed by the papers, of permitting this receiver agreed on by the litigants to prosecute the business which they would not agree to manage. The order should be reversed, with $10 costs and printing disbursements, and motion denied, with $10 costs.