
    Thomas McCarty, Plaintiff, v. David H. Stanwix, Defendant
    (Supreme Court, Albany Special Term,
    February, 1896.)
    Partnership — Dissolution — Receiver,
    A receiver should not be appointed nor an injunction granted in an action to dissolve a partnership where the partnership is denied and the affidavits do not clearly show that the partnership exists in fact or that the fund is in, danger;,
    Motion for the appointment of a receiver and continuance of temporary injunction.
    W. Erothingham, for plaintiff.
    , Edward j. Meegan, for defendant.
   Chester, J.

The plaintiff,, who has brought this action to procure the dissolution of an alleged partnership between him and the defendant, now moves for the appointment of a receiver, and for a continuance of the temporary injunction heretofore, granted.

The defendant has interposed for answer a general denial of all the allegations of the complaint and presents- his own affidavit on this motion, and the affidavits of other persons- in corroboration of it, denying the alleged partnership, and denying the facts alleged in the moving papers tending to show .a partnership. The affidavits, on this, question, presented in support of the motion are squarely denied by those presented in opposition. I am disposed to apply to this motion the rule that" where the partnership; is denied the court should not, appoint a receiver or grant an injunction unless it is satisfied from the affidavits- that there is in fact a partnership between the ■ parties> or that the fund is in danger; Goulding v. Bain, 4 Sandf. 716,

The -affidavits here are very conflicting in their character,, and fail to convince me that a partnership exists between these parties, or that there are any assets of the alleged partnership that, ai*e. liable to he misapplied if left in, the care of the defendant, until the action is tried.

Motion denied, with costs.  