
    Matilda Miller, as Administratrix, etc., of John L. Miller, Deceased, Respondent, v. Gouvenier M. Herrick, Individually and as Executor, etc., of Lucretia Herrick, Deceased, and Others, Appellants, Impleaded with Stephen I. Miller, Defendant.
    Third Department,
    November 13, 1907.
    Receiver pendente lite — appointment affirmed on conditions..
    An order appointing a receiver of a freight barge pending an action to have a bill of sale thereof declared to be a mortgage will not be reversed when the receiver , will be in possession only during months when navigation is closed and the action will unquestionably be tried before the opening of navigation. But when the case made for the appointment of the receiver is not strong, the affirmance, of the order should be upon the condition that the defendant may move to discharge the receiver if the a'ction be not brought to trial before the opening of navigation.
    Appeal by the defendants, Gouvenier M. Herrick, individually and as executor, and others, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Rensselaer on the 21st day of June, 1907, appointing one George Anderson receiver of the freight barge Chicago.
    
    
      Van Santvoord <& Wellington, for the appellant John W. Herrick. •
    
      Martin A. Spring steed, for the appellants Gouvenier M. Herrick and Hattie A. Herrick.
    
      B. W. Stryker, for the respondent.
   Smith, P. J.:

The plaintiff and Stephen I. Miller are the wife and son of John L. Miller, deceased. Upon the 17th day of August, 1903, they executed a chattel mortgage upon the boat in question to Lucretia Herrick to secure the payment of $5,000 loaned. Lucretia Herrick died the 29th of February, 1904, and Gouvenier M. Herrick was appointed her executor. In September, 1904, plaintiff and defendant Stephen I. Miller executed to John W. Herrick a bill of sale of this barge Chicago for $4,000, subject to the $5,000 chattel mortgage. Upon May 5, 1906, John W. Herrick transferred to Grouvenier M. Herrick and Hattie A. Herrick the said boat, subject to the $5,000 chattel mortgage. This action was then brought by plaintiff against these defendants, alleging that this bill of sale to John W. Herrick was given as security for certain moneys owing by Stephen I. Miller to said Herrick arising out of some partnership matters; that these moneys had since been paid by payment of'certain bills against the said partnership by said Stephen I. Miller; that the bill of sale from John W. Herrick to G-ouvenier M. Herrick and Hattie’ A. Herrick was without knowledge of the plaintiff, and an accountr ing is asked for, to determine the amount, if any, due from Stephen I. Miller to John W. Herrick, or his assignees, and to declare the bill of. sale to be a mortgage. In that action an injunction was first obtained forbidding the defendants from transferring or selling or disposing of the said barge during the pendency of the action. Thereafter a receiver was appointed upon the motion of plaintiff upon the. ground that the boat was in need of repair, and that the insurance is rendered precarious and liable to cancellation, and that there is danger that the said barge will be materially injured or destroyed.

The defendant claims that the bill of sale to John W. Herrick was absolute. "This appeal is from the order appointing the receiver.

The case made for the appointment of the receiver is not a strong one. The plaintiff is substantially protected by the injunction order, which restrains the defendant from selling or disposing of the barge. It does not appear that there was any stay under the order, and that the receiver has not been in possession during the summer months when the barge was available for navigation. At the time this decision is rendered navigation will have ceased, and it would seem that'the defendants can be little harmed by the continuance of the said barge in the possession of the receiver until spring, within which time undoubtedly this action can be tried. If the action be not brought to trial before the opening of navigation in the spring defendants may have leave to move to discharge the receiver, or make such other motion as to them may seem wise: The order appealed from should, therefore, be affirmed, with leave to defendants, if the action be not tried and determined before the opening of navigation in the spring, to move for the discharge tof the receiver. No costs are awarded to either party.

All concurred.

Order affirmed, with leave to defendants if the action be not tried and determined before the opening of navigation in- the spring, to move for the discharge of the receiver. No costs are awarded to either party.  