Hyperlawhypertext legal database Bathmann v. Bathmann 61 N.Y. St. Rep. 270

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Bathmann v. Bathmann

61 N.Y. St. Rep. 270 Court N.Y. Gen. Term Decision date 1894-07-13 English

Delivered by Van Brunt, P. J.

Contents

Majority

p. 270
Claus Bathmann, App’lt, v. Catharine Bathmann et al., Def’ts. Catharine Bathmann, App’lt.
(Supreme Court, General Term, First Department,
Filed July 13, 1894.)

Headnote

Receivers—Appointment.
A receiver will not be appointed in.an action for partition, where the defendant in possession denies that any demand has ever been made on her for an account of the rents, and expresses a willingness to render such an account at any time and to pay over the share of the moving defendant.
Appeal from an order appointing a receiver.
Samuel Campbell, for app’lt; Rabe & Keller, for resp’t.

—This action was brought for the partition of certain real estate in the city of New York: and one of the defendants, the owner of a small interest therein, made this motion for the appointment of a receiver upon the grounds that the defendant Catharine Bathmann was in possession of, and collected the rents of, the premises sought to be partitioned, and refused to account for the same. The defendant Catharine Bathmann denied ever having had any demand made upon her for an account of the rents, and expressed her willingness to render such account at any time, and to pay over the share of the moving defendant. The court thereupon made an order appointing a receiver, and both the plaintiff and the defendant Catharine Bathmann appealed therefrom.

There seems to have been no ground whatever for the appointment. The allegation of a refusal to account was expressly denied, and there is no evidence whatever that the defendant Catharine Bathmann has acted with impropriety, or that she is unable to respond to any claim of the moving defendant; and it is rather a peculiar feature that the only person who complains is the respondent, the owner of a very small interest in the estate sought to be partitioned. There does not seem to be any ground whatever for the intervention of the court, and the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

All concur.