Booth v. Smith — 29 N.Y.S. 790

Majority

p. 790

BOOTH v. SMITH et al.

(Supreme Court, General Term, Second Department.

June 18, 1894.)

Headnote

Receivers—Appointment—Partnership.

In an action by the surviving partner against the representatives of the deceased partner for an accounting, a receiver of the firm property

p. 791

will not be appointed on plaintiff’s application, where defendants have not interfered with plaintiff in closing up the firm affairs, but have expressed their confidence in him and their willingness to allow him all his rights as surviving partner, and there is no suggestion that the property will be removed, or in any way endangered.

Appeal from special term, Dutchess county.

Action by Oliver H. Booth against Hannibal Smith and Mary A. Huntington, as administrators of James Vassar Harbotüe, deceased, for an accounting. From an order appointing plaintiff receiver of the property of the firm of M. Vassar & Co., composed of plaintiff, defendants’ intestate, and others, defendants appeal.

Reversed.

Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.

Smith & Smith, for appellants.

Frank B. Lown, for respondent.

This is an appeal from an order appointing a receiver of the partnership property of M. Vassar & Co. The plaintiff is the surviving member of that firm, and this action is brought to procure an accounting' between him and the personal representatives of a deceased copartner in respect to the dealings of the firm, and the complaint contains a prayer for the appointment of a receiver. The complaint contains no allegation showing any especial necessity for a receiver, and the appointment was opposed by the defendants, who are the personal representatives of the deceased co-partner of the plaintiff. The plaintiff presented a claim to the defendants against the estate of their intestate, of about $9,000, which they rejected, and offered to refer under the statute. The plaintiff did not accept the offer, but commenced this action. The defendants have not interfered with the plaintiff in closing up the affairs of the copartnership as surviving partner, and all the books of account and property of the firm are in his possession. The defendants declare their confidence in the plaintiff, and their willingness to allow him to exercise all the rights with which he is clothed by law as surviving partner. There is no suggestion that the property will be removed, or that it will be endangered in any way. It is in the undisputed possession of the plaintiff, with the approbation of all parties interested. Under these circumstances, we can perceive no possible necessity for the appointment of a receiver, and the order should be reversed, with $10 costs and disbursements. AH concur.