Jacobus v. American Mineral Water Machine Co.

Majority

p. 289

JACOBUS v. AMERICAN MINERAL WATER MACH. CO. et al.

(Supreme Court, Appellate Division, First Department.

December 6, 1901.)

Headnote

Appointment op Receiver—Injunction Pendente Lite—Disputed Facts.

The appointment of a receiver and an injunction pendente lite were properly refused on affidavits, where the facts were in dispute, and an opportunity given to have them determined at the special term after trial was declined.

Appeal from special term, New York county.

Action by Emanuel Jacobus against the American Mineral Water Machine Company and others. From an order denying the appointment of a receiver and for an injunction pendente lite, the plaintiff appeals.

Affirmed.

Argued before VAN BRUNT, P. J„ and McLAUGHLIN, PATTERSON, O’BRIEN, and LAUGHLIN, JJ.

p. 290

E. Treadwell, for appellant.

C. E. Kingsley, for respondents American Mineral Water Co. and others.

Leo G. Rosenblatt, for respondent Diamond Soda Water Mach. Co.

B. Tuska, for respondents Rothschild and others.

Instead of appealing, the plaintiff might have had the disputed questions of fact tried at the special term, the case having been reached on the November calendar. Where, as here, the facts are in dispute, and grave charges of fraud, wrongdoing, and bad faith on the part of the directors are -involved, those questions should not be disposed of on affidavits, when an opportunity has been given to have them determined at the special term after a trial.

The order should be affirmed, with $io costs and disbursements.