Opinion
October Term, 1901.
Order appointing temporary receiver reversed, with ten dollars costs and disbursements, and order granted authorizing the business to be continued by the appellant during the pendency of the action, upon his executing and filing an undertaking in the sum of $20,000, under section 1947 of the Code of Civil Procedure, such undertaking to be approved by a justice at the Special Term.
The court at Special Term has appointed a temporary receiver of the firm of C.S. Locke Smith, at the instance of Thomas Kirkwood, the plaintiff, upon the allegation that he was a copartner in that firm. From the papers and affidavits submitted on the motion, it seems to us extremely doubtful whether any partnership relation ever existed between Mr. Kirkwood and Mr. Smith. It is also very questionable whether the affidavits in support of the application disclosed any such condition of the business as to require the appointment of a receiver. If the court below was justified in interfering at all, it should not have gone farther than to make an order under section 1947 of the Code of Civil Procedure authorizing the business to be continued during the pendency of the action by Mr. Smith, who was solely concerned in the active conduct of the affairs of the alleged firm. The interests of the plaintiff would have been amply protected by requiring security as prescribed in that section. The order appointing a temporary receiver should be reversed, with ten dollars costs and disbursements, and an order should be made in lieu thereof authorizing the business to be continued by the appellant during the pendency of the action, upon his executing and filing an undertaking in the sum of $20,000, under section 1947 of the Code of Civil Procedure. Goodrich, P.J., Bartlett, Hirschberg, Jenks and Sewell, JJ., concurred.