
    Jeanette Herzig Joseph, as Executrix, etc., of Philip Herzig, Deceased, Respondent, v. Simon Herzig, Individually and as Executor, etc., of Philip Herzig, Deceased, Appellant.
    First Department,
    March 5, 1909.
    Receiver — when temporary receiver of partnership property should not ' be appointed.
    The executrix of a deceased partner suing her coexecutor who is a surviving partner of the decedent, to compel him to account for the good will of the partnership which he is alleged to have appropriated to his own use, is not entitled to have a receiver of the partnership property appointed pendente lite 
      even if it be apparent that the defendant will be liable to account, when there is no allegation that he is or is likely to become insolvent or is unable to respond to a decree of the court. Especially is this so where it is alleged that the partnership business has greatly increased since the death of the plaintiff’s testator.
    Appeal by the defendant, Simon Herzig, individually and as éxecutor, etc., from an order of the Supreme Court, made at the Mew York Special Term, dated the 29th day of January, 1909, and entered in the office of the clerk of the county of Mew'York granting the plaintiffs motion for the appointment of a receiver.
    
      Harold Nathan, for the appellant.
    
      John A. Garver, for the respondent.
   Scott, J.:

This is an action between the executrix and the executor of Philip Herzig, deceased. Plaintiff is his daughter. Defendant was-his brother and his partner in the firm of Herzig Brothers. As the estate consisted, mainly, if not entirely, of the interest of decedent in the copartnership, the defendant has assumed the active administration of the estate, and has apparently excluded the widow from participating therein. The defendant has. gone through the form of accounting in the Surrogate’s Court, but the plaintiff insists that he has failed to account for certain assets of which the principal item is the good will of the copartnership, and the value of the use of the firm name which the defendant has appropriated and used for a new copartnership organized by him after his brother’s death. The circumstances, so far as described by the papers before us, are quite similar to those in Slater v. Slater (175 N. Y. 143), and without undertaking to decide the question in advance, it may be said to appear probable that the defendant will be found liable to account for the value of the good will ..and the use of the firm name, and perhaps for other assets. The present appeal is from an order appointing a receiver pendente lite of the copartnership property, assets and effects of the late firm of Herzig Brothers, with an alternative clause to the effect that the defendant may, in lieu of the appointment of a 2’eeeiver, file with the clei’k an undertaking in the sum of $100,000 and deposit with said clerk the books of account of said late firm, and all books of account used in connection with the continuance of said business since the death of Philip Herzig. We think that the appointment of a receiver at this time is unnecessary and unadvisable. Assuming, as we must for the purposes of this appeal, that it will be found that the defendant has appropriated, and now has in his hands, unadministered assets of the estate for which he should account, he still remains an executor of the estate, and as such is entitled to hold the assets until required by a proper decree to account for them and pay them over. It is not alleged that he is insolvent or unable to respond to any decree or likely to become insolvent or unable. On the contrary, it is alleged that the business has greatly increased since the death of Philip Herzig, from which the natural implication follows that defendant’s means and responsibility have increased. If the contrary be the fact, and there be any doubt of defendant’s financial responsibility, the surrogate has ample power to compel him to give adequate security. Indeed, there appears to be nothing tangible at. the present moment upon which a receiver could lay his hands. He could but prosecute an action similar to the present which the plaintiff can equally well prosecute. The appointment of a temporary receiver in advance of a trial is not to be lightly made and cannot be justified merely because the plaintiff shows that she is apparently entitled to some recovery, and especially is. this so where the defendant, of whose property a receiver is applied for, is engaged in a going business and is apparently solvent and well able to respond to any judgment that may be obtained against him. If, when a trial has been had, and an interlocutory judgment obtained, it appears that it will be necessary to appoint a receiver to carry the judgment into effect, a different question will be presented. It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  