99 N.Y.S. 730 | N.Y. App. Div. | 1906
This is an appeal from so much of an order made at Special Term upon an application for an injunction pendente lite, as grants the motion to the extent of restraining the defendant from foreclosing a chattel mortgage. Section 603 of the Code of Civil Procedure provides that “ Where it appears from the complaint that the plain
We have recently held in Goldman v. Corn (111 App. Div. 674; 97 N. Y. Supp. 926) that the facts must be alleged in the complaint showing that the plaintiff is entitled to injunctive relief and that such right" cannot be established by affidavits. It becomes necessary, therefore, to examine the complaint, for if the complaint is not good, the order cannot be sustained. The plaintiff sues individually and as surviving copartner of the firm of M. Loewenstein & Son, alleging that he was the son of Meier Loewenstein, the defendant, his mother, individually and executrix of the last will and testament of his father.
-The complaint alleges that for several years prior to the 11th day of May, 1905, his father and himself were copartners in the steam laundry business ; that his father was the owner of a three-quarter interest and the plaintiff a one-quarter interest; that the said Meier Loewenstein died about the 11th day of May, 1905, in the city of Mew York, leaving a last will and testament, wherein the defendant was nominated as executrix, which will was duly admitted to probate and letters testamentary were issued to the defendant, who entered upon her duties as such executrix and ever has, and still is performing the same; that by the will, defendant received the income of the estate of the said decedent for and during the term of her natural life, and upon her death said estate was to be divided into nine equal shares to be distributed equally among the nine children, one of whom was the plaintiff; that subsequent to the death of Meier Loewenstein plaintiff has conducted the business of the firm as surviving partner; that prior to the death of the said Meier Loewenstein, plaintiff and the said Meier Loewenstein, as copartners, made, executed and delivered a chattel mortgage upon some of the machinery and fixtures then owned by the said copartnership to. one Gustave Rosenblatt to secure the sum of $2,400; that the said chattel mortgage was sub
Upon the death of a partner, the partnership is ipso facto dissolved. The legal title to the property and assets of the partnership thereby become vested in the surviving partner only for the purpose, however, of winding up the business and settling the part
Therefore, the order appealed from should be modified by striking out the portion appealed from granting the injunction, and as so modified affirmed, with costs to the appellant.
O’Brien, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.
■ Order modified by striking out the portion appealed from granting the injunction, and as so modified affirmed, with costs to appellant. Settle order on notice.