
    Samuel Green, Plaintiff, v. Nathan Tuchner et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1902.)
    Partnership — Continuance of an injunction, to prevent a firm execution creditor from continuing the business, when refused one partner — Receiver.
    Where the preponderance of evidence tended to show that the firm of Green & Tuchner was indebted to one Weitzman for money loaned it, that he recovered judgment in another court against the firm without service of the summons upon Green, that when Weitzman attempted to sell on execution Green resisted and obtained leave to defend that action, that Green agreed to the sale provided the proceeds be paid into court to abide the event of that action, and that Weitzman purchased most of the stock at the sale and employed Tuchner, a practical worker in that kind of business, to continue it in Weitzman’s name and interest, the Supreme Court refused to allow Green further to restrain Weitzman (and Tuchner) from interfering with or carrying on the business and also refused to appoint a receiver thereof.
    Motion to continue an injunction.
    David W. Eockmore, for plaintiff.
    J. Leon Brandmarker, for defendant Weitzman.
   Hall, J.

The plaintiff seeks to have continued pendente lite a preliminary injunction granted in this action to restrain the defendants from interfering with or carrying on a business lately belonging to the firm of Green & Tuchner, composed of the plaintiff and the defendant Tuchner, and he also asks for a receiver of said business. It appears by the papers that plaintiff and defendant Tuchner entered into an agreement of partnership in April last to carry on a brass finishing business. The plaintiff had previously been the owner of the business, and the assets thereof were valued by him at $700. The defendant Tuchner paid him $350 in cash for a half interest in the business and they each became equal partners. The business of manufacturing was carried on down to about August 1st, but veiy few if any goods were sold, although the expenses of the business went on, and the partners drew ten dollars per week each out of the assets for living expenses. Some disagreement arose between the partners early in August, and they agreed to dissolve. On August 8, 1902, while plaintiff was at the place of business the sheriff of this county appeared and took possession of the stock and assets by virtue of an execution issued out of the City Court of the city of New York upon a judgment rendered in that court in an action in which Ch. Weitzman, one of the defendants herein, was plaintiff, and Nathan Tuchner (also a defendant herein) and the plaintiff herein were defendants. The property was advertised for sale by the sheriff, but the sale was stayed by one of the justices of the City Court of the city of New York by a stay contained in an order to show cause, obtained by the plaintiff herein, why the judgment should not be set aside and the defendant Green allowed to come in and defend. Pending a decision of said motion an agreement was made between the attorneys for Weitzman, the plaintiff in that action, and the plaintiff Green, one of the defendants in that action, by which the stay was vacated and the sale allowed to proceed, the proceeds thereof to be held by the sheriff pending a trial of said action in the City Court, the defendant (in that action) Green having been allowed to defend the same. An answer has been served by Green in the City Court action, and the same is now at issue and on the calendar for trial. At the execution sale Weitzman, one of the defendants herein, became the purchaser of most of the property, although some of it was purchased by outside parties. The plaintiff Green attended the sale and bid upon some of the property, but was outbid by other purchasers. The plaintiff claims that the action in the City Court of the city of New York was commenced and judgment entered and execution issued pursuant to a conspiracy between Tuehner, his partner, and the defendant Weitzman, by which Tuehner was to obtain possession of the business and oust the plaintiff by using Weitzman as a cloak, and that the business has since been carried on by Tuehner, and that Weitzman has had no part in it. It is also claimed that the alleged debt of the firm to Weitzman, upon which the judgment was obtained, was fictitious and had no existence in fact,, and that the firm was not indebted to Weitzman for borrowed money or upon any account whatsoever. If these facts were undisputed the plaintiff, would certainly be entitled to the relief here prayed for, but the defendants’ papers disclose a state of facts which are practically undenied, and which put a very different aspect upon the matter. It is shown, and not disputed, that although the manufacturing part of the business was carried on actively from April to August, few if any goods were sold. The expenses were paid, consisting of rent, wages, drawings by the partners, gas, materials, etc., and they all appear to have been met in some way. Weitzman swears, and it is not denied, that a part of his loans were made directly to the plaintiff Green, and that some of the advances were made to Tuehner in Green’s presence and were made upon the statement that the money was absolutely necessary in the business. Green, the plaintiff, after learning of the judgment and execution, went to the office of Weitzman’s attorney and agreed upon terms of settlement of the same and paid thirty-five dollars on account of the judgment, and made no claim that it was not a valid judgment, notwithstanding the fact that he had not been served with process. Green’s attorney entered into a stipulation in the City Court action vacating the stay, and allowing the copartnership assets to be sold under the execution issued upon the judgment which he now claims was the result of a conspiracy, and he attended the sale and bid upon some of the property. I think the preponderance of evidence shows that the business has, since the sale, been owned and canned on by Weitzman, although he may have .employed Tuehner, who was a practical worker, whereas Weitzman was not. The plaintiff is perhaps entitled to a dissolution of the copartnership and an accounting of the assets, if any, and if he can convince the court of the facts set forth in his complaint he may receive his share of the proceeds of sale of the assets now in the hands of the sheriff, but he fails entirely to make out a case entitling him to an injunction pendente lite, and no present necessity exists for the appointment of a receiver. Motion to continue injunction denied, with ten dollars costs, and temporary injunction contained in order to show cause dissolved, and the motion for receiver is denied, with leave to renew if necessary.

Ordered accordingly.  