
    ROBERT C. DAVIDGE, Respondent, v. RUSSELL COE, Appellant.
    
      Receiver, partnership not indispensable requisite to appointment of—Indeflniteness of order appointing receiver not ground for reversal—Waiver of appeal, what not.
    
    Where a plaintiff who has an interest in the profits as such under an arrangement between him and the defendant, whereby defendant was to furnish the plaintiff with goods to be sold by him, and plaintiff was to make sales thereof, make collections and receive primarily the profits and then divide them equally, brings an action in effect to wind up the business, for an accounting, and for a distribution of its assets according to the agreement, he is entitled (irrespective of any question of partnership) to a receiver of the books and papers necessary to such winding up, it being conceded that the agreement had terminated, and that an accounting was necessary.
    The fact that the language of the order, appointing a receiver, is so general as to leave it open to dispute what identical things are to be delivered to him, is not a sufficient ground for reversing the order.
    Proceeding on an accounting ordered by a judgment does not waive the right of appeal from that part of the same judgment which appoints a receiver.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided March 14, 1887.
    Appeal by defendant from, such part of the interlocutory judgment as directed the appointment of a receiver of certain property.
    Motion by respondent to dismiss this appeal.
    The complaint after setting forth the terms of an agreement between the plaintiff and defendant as they are stated in the opinion of the court (except that it alleged that the losses were to be borne equally) alleged that the business was carried on under plaintiff’s management and direction at the city of New York until January 1, 1885; that the books of the business were kept by the plaintiff, and were in his custody until July 8, 1886, when, without his knowledge or consent, they were taken from his custody by the defendant who still has the custody and control thereof; that he has been unable to regain the possession thereof; that a large amount is due from various persons for fertilizers sold them, and a considerable sum is due for debts contracted in the business; that said books of account contain entries of all sales and transactions relating to said business and mutual accounts between the plaintiff and defendant; that differences have arisen which preclude an amicable settlement of the accounts; and that the agreement between the plaintiff and defendant has terminated, and the relations thereby constituted dissolved; and prayed judgment “ that a receiver of the property and assets of said business may be appointed; that an injunction issue enjoining and restraining said defendant from secreting, removing, disposing of, or in any way interfering with said property, assets or books of account, and from collecting the accounts and credits pertaining to said business; that an account be taken and stated between the plaintiff and defendant of the matters relating to said business; that said property and assets be applied to the payment of the debts incurred in the said business, and that the remainder be divided between the plaintiff and said defendant in accordance with their rights respectively under said agreement.”
    The defendant by his answer admitted that the agreement had terminated, and the relations thereby constituted dissolved.
    Other facts appear in the opinion.
    
      Henry Sanger Snow, attorney and of counsel for appellant, after insisting that there was no partnership, and citing authorities in support of that position, argued on the principal appeal.
    Upon the whole case, therefore, it is maintained that plaintiff fails to establish a partnership, and upon no other ground is he entitled to the receivership and injunction granted by the court at special term. The rights or interests of third persons are not in issue; the question is between the parties themselves, and the relationship, both inter sese and as to third persons, was that of principal and agent.
    On the motion to dismiss he cited Bencord v. Babcock, 2 Robt. 178; Bennett v. Van Syckel, 18 N. Y. 481; Barker v. White, 58 Ib. 204; Brown v. Mayor, 9 Hun, 590 ; Hyatt v. Ingalls, 17 J. & S. 375 ; Matter of Water Commissioners of Amsterdam, 36 Hun, 534; Knapp v. Brown, 45 N. Y. 209; Egbert v. O’Conner, 46 N. Y. Supr. Ct. R. 194; Taussig v. Hart, 33 Ib. 157.
    
      
      F. C. Cantine, attorney and of counsel for respondent,
    on the motion to dismiss, cited, 4 Wait's Pr. 216 ; Bennett v. Van Syckel, 18 N. Y. 481-483; Murphy v. Spaulding, 46 Ib. 556—9 ; Matter of Water Commissioners, 36 Hun, 535.
   By the Court.—Sedgwick, Ch. J.

The parties had made an agreement by which the defendant was to furnish to plaintiff, from time to time, fertilizers, and the plaintiff was to sell them. From the proceeds, the defendant was to be reimbursed the cost of the fertilizers, then expenses were to be deducted, and profits were to be equally divided. The terms of the agreement are not in doubt, when the findings of the court are read, in connection with the testimony and the defendant’s answer. The defendant, however, claims that the plaintiff acted only as an agent of defendant, and that, therefore, the defendant was entitled to the possession of the books of account kept of the business, the papers connected with it, and Avhat are called the vouchers. The case was tried, on both sides, in such an indefinite and uncertain Avay that it is not possible to particularize these books, papers and A'ouchers, or Avhat is called in the case the assets of the business. The learned counsel for appellant does not deny that there should be an account adjudged to be made between the parties in the way directed by the judge below, but confines himself to the position that,as there Avas not a partnership, there can be no receiver. This is not an inevitable consequence. If, as was the case, the plaintiff had an interest in the profits as such, under an arrangement by which he was to make collections and receive primarily the profits, and then divide them equally, there would be sufficient cause for the appointment of a receiver of the documents of the business that would be necessary to the winding up of the business. The doubt would be whether, under the agreement, even if an account Avere directed in an action, the plaintiff would not be entitled to the sole possession of the documents so long as he was faithfully winding up the business. The propriety of the appointment of a receiver in such a case, and its validity, can be said to have been admitted by the defendant, for he avers in his answer that, in an action begun by him in the Supreme Court against the plaintiff here in relation to the same agreement and its consequences, he made a motion which the court granted; and that on it an order was entered “ appointing a receiver to take charge of and hold, until the determination of said action, the notes, moneys, books of account and other property in plaintiff’s possession as general agent as aforesaid.” In this case, if a temporary receiver was proper, so would be a permanent receiver. If the one side was entitled to secure the appointment of a receiver, so was the other-side.

The description of the property which the receiver is to take under the present judgment, is so general that , it may be foreseen that there will be a further dispute as to what identical things the parties are bound to deliver to the receiver: The plaintiff should have

made sufficient provision as to this. This however furnishes no reason for sustaining the appeal of the defendant.

The judgment is affirmed with costs.

As to the motion to dismiss the appeal, it must be said that the defendant did not waive his right to appeal from the judgment appointing a receiver by proceeding to the accounting ordered by that judgment. These parts of the judgment are divisible. An accounting might be proper although no receiver was appointed.

The motion to dismiss is denied with $10 costs.

Truax and Dugro, JX, concurred.  