Booth v. Smith — 61 N.Y. St. Rep. 496

Majority

p. 496

Oliver H. Booth, Resp’t, v. Hannibal Smith et al., as Administrators, etc., App’lts.

(Supreme Court, General Term, Second Department,

Filed June 18, 1894.)

Headnote

Receiver—Partnership—Appointzment.

A receiver of firm property will not Be appointed on plaintiff’s application, in an action by the surviving partner against the representatives of

p. 497

the deceased partner for an accounting, where the complaint contains no allegation showing any special necessity for a receiver, and the appointment is opposed by the defendants.

Appeal from an order appointing a receiver of partnership property.

Smith & Smith, for app’lts ; Frank B. Lown, for resp’t.

—This is an appeal from an order appointing a receiver of the partnership property of M. Vassar Go. 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 copartner 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. All concur.