Power v. Alger
13 Abb. Pr. 284
N.Y. Sup. Ct.
1859
Check Treatment
By the Court.*— Gould, J.

—As the appointment of a receiver could not properly be made, unless the'order of injunction were sustained, the appeal from-the order dissolving the injunction may be first considered; for if that appeal be unsuccessful, its decision carries with it that of the appeal from the order refusing to appoint a receiver.

The facts, and the averments in the affidavits, upon which the decision dissolving the injunction was made, may be briefly stated; so far, at least, as I deem them essential on that matter. The plaintiffs claim the title to certain books of account, and the debts off which those books contain the evidence; and also such notes, etc., as were held and owned by the late firm of A. H. McArthur & Co.; and ask the. court to appoint a receiver to take and collect the same for the plaintiffs’ benefit, and enjoin the defendant from collecting or interfering with the same. The defendant claims that he is a bona-fide purchaser of the same for value, and without notice of the prior transfer to the plaintiffs ; and that he received the delivery and took possession of *296the assets at the time he bought. The plaintiffs aver (in an affidavit which the defendant has had no opportunity to answer), that the defendant was a partner in the firm of A. H. McArthur & Co., and so bound by the transfer by his partners to the plaintiffs ; and that he did not pay value for the assets. The defendant avers that he is abundantly responsible in a pecuniary point of view, both in real and personal estate uncharged and unincumbered; and fully able to respond for a much larger sum than the whole amount in controversy: and this is not denied. The defendant avers that by reason of the nature of the debts, and the residence of the debtors, very great injury must result from passing them into the hands of a receiver; and there is no contradiction of this. The plaintiffs do not claim that the defendant is not likely to be able to satisfy any judgment they, may obtain in the suit in which the injunction wus granted; or state that they are likely to sustain any injury in case an injunction be not issued.

It seems to me they make no case for granting the injunction. There is nothing more of it than the common case of a controversy as to the title of personal property between two persons, each perfectly responsible, and each claiming to own the property. Such a suit needs no aid of the court to prevent the defendant from “ doing any act to render the judgment ineffectual.”

I should affirm the orders appealed from.

Wright, J., concurred.

Hogeboom, J., was for a modification of the order (so as to compel payment of the Holmes note, or that in effect).

Notes

Present, W. B. Wright, Gould, and Hogeboom, JJ.