Bergen v. Deering — 53 N.Y. St. Rep. 893

Majority

p. 893

Edward Bergen, Resp’t, v. John J. Deering, App’lt.

(Supreme Court, General Term, First Department,

Filed June 30, 1893.)

Headnote

Partnership—Dissolution—Release of levy previously made.

In an action to wind up the affairs of a partnership brought because of a disagreement as to its management, an order requiring the sheriff to turn over to the receiver appointed therein the property previously levied upon under executions against the firm should not be granted, where the validity of the judgments upon which the executions issued is not impeached or security offered for their ultimate payment.

• Appeal from order directing the sheriff to deliver certain goods held by him under an execution to a receiver.

James Kearney, for app’lt; Nathaniel Levy, for resp’t

The litigants were 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 the whole property taken on the executions to the receiver. 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 ten dollars costs and printing disbursements, and motion denied, with ten dollars ■costs.

Van Brunt, P. J., Follett and Parker, JJ., concur.