
    Louis Loewenstein, Individually and as Surviving Copartner of the Firm of M. Loewenstein & Son, Respondent, v. Bertha Loewenstein, Individually and as Executrix, etc., of Meier Loewenstein, Deceased, Appellant.
    First Department,
    June 15, 1906.
    Injunction pendente lite to restrain foreclosure of chattel mortgage — complaint showing no right to such injunction—purchase of mortgage not payment thereof.
    On a motion for an injunction pendente lite under section 603 of the Code of Civil Procedure, where the right to the injunction depends upon the nature of the action, the plaintiff’s right to the relief must appear in the complaint and cannot he established by affidavit.
    A complaint which merely alleges that the plaintiff is a surviving partner of his father, and that the executrix of the decedent has purchased from a third person an outstanding chattel mortgage on the firm property with the funds of the estate, and seeks to foreclose it in order to hinder the plaintiff in the conduct of the business, and to force him to accept a smaller sum of his father’s estate than agreed upon, shows no right to a temporary injunction restraining the foreclosure of such mortgage.
    Such purchase of an outstanding chattel mortgage from the mortgagee does not constitute a payment thereof, and its enforcement cannot be restrained by injunction.
    Appeal by the defendant, Bertha Loewenstein, individually and as executrix, etc., of Meier Loewenstein, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of March, 1906.
    
      August P. Wagener, for the appellant.
    
      Charles Grossman [Morris J. Hirsch, attorney], for the respondent.
   Clarke, J.:

This is an appeal from so much of an order made at Special Term upon an application for an injunction pendente lite, as grants the motion to the extent of restraining the defendant from foreclosing a chattel mortgage. Section 603 of the Code of Civil Procedure provides that Where it appears from the complaint that the plaintiff demands, and is entitled to a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiff, an injunction order may be granted to restrain it. The case, provided for in this section, is described in this act, as a case where the right to an injunction depends upon the nature of. the action.”

We have recently held in Goldman v. Corn (111 App. Div. 674; 97 N. Y. Supp. 926) that the facts must be alleged in the complaint showing that the plaintiff is entitled to injunctive relief and that such right" cannot be established by affidavits. It becomes necessary, therefore, to examine the complaint, for if the complaint is not good, the order cannot be sustained. The plaintiff sues individually and as surviving copartner of the firm of M. Loewenstein & Son, alleging that he was the son of Meier Loewenstein, the defendant, his mother, individually and executrix of the last will and testament of his father.

-The complaint alleges that for several years prior to the 11th day of May, 1905, his father and himself were copartners in the steam laundry business ; that his father was the owner of a three-quarter interest and the plaintiff a one-quarter interest; that the said Meier Loewenstein died about the 11th day of May, 1905, in the city of Mew York, leaving a last will and testament, wherein the defendant was nominated as executrix, which will was duly admitted to probate and letters testamentary were issued to the defendant, who entered upon her duties as such executrix and ever has, and still is performing the same; that by the will, defendant received the income of the estate of the said decedent for and during the term of her natural life, and upon her death said estate was to be divided into nine equal shares to be distributed equally among the nine children, one of whom was the plaintiff; that subsequent to the death of Meier Loewenstein plaintiff has conducted the business of the firm as surviving partner; that prior to the death of the said Meier Loewenstein, plaintiff and the said Meier Loewenstein, as copartners, made, executed and delivered a chattel mortgage upon some of the machinery and fixtures then owned by the said copartnership to. one Gustave Rosenblatt to secure the sum of $2,400; that the said chattel mortgage was subsequently transferred and assigned to one Samuel Rosenblatt who remained the owner thereof up to the 26th day of December, 1905, at which time, the defendant, as executrix of the last will and testament of Meier Loewenstein, and out of the funds of the estate of said Meier Loewenstein, deceased, paid the said chattel mortgage and secured an assignment of the same to herself, as such executrix; that on or about the 4th day of January, 1906, the defendant placed or assumed to place in possession of the chattels mentioned and described in said mortgage, a marshal of the city of Yew York, and seized or assumed to seize all of the said machinery and fixtures described in said mortgage; that the defendant threatened to sell all the said fixtures and machinery referred to in said chattel mortgage and a day was fixed for the sale; that the said machinery and fixtures comprised almost the entire working capital of the said firm and a greater portion of the assets thereof. It is further alleged upon information and belief that the seizure by the defendant, under and by virtue of the said chattel mortgage and the threatened sale thereof, is'made for the purpose of preventing the continuance of the said business and for the purpose of disrupting the same and for the purpose of wiping out all right, title and interest of the plaintiff in and to the interest of the firm of M. Loewenstein & Son, and for the purpose of hindering, delaying and annoying the plaintiff in the conduct of the said business, as surviving partner of the copartnership, and the only object of defendant in paying the said mortgage was thereby to acquire a handle, over the plaintiff and to attempt to force the plaintiff to accept a lesser sum than theretofore agreed upon, and upon the failure of plaintiff to meet the demands of the defendant to foreclose the chattel mortgage, purchase the property and thereafter take the said business for her own use and benefit, to the exclusion of the rights of the plaintiff. Wherefore, he demands judgment inter alia that the defendant, her agents, servants and attorney and any marshal of the city of Yew York be restrained from taking any proceeding under and by virtue of said chattel mortgage.

Upon the death of a partner, the partnership is ipso facto dissolved. The legal title to the property and assets of the partnership thereby become vested in the surviving partner only for the purpose, however, of winding up the business and settling the partnership affairs. From the allegations of the complaint, it would appear that the plaintiff has continued the business, not for the purpose of winding it up, but as a going concern. There is no allegation that the chattel mortgage referred to was void in its inception for any reason, or that the same has been paid by plaintiff or that the plaintiff has offered to or is ready to pay the same. The defendant,.as executrix of the estate of her dead husband, is not a copartner in the business and a purchase' by her of tlie mortgage was not a payment thereof. It is an existing obligation against the specific articles included and covered by it and I know of no principle by which such purchase can be held to be a payment thereof, or any principle under which an injunction to prevent the foreclosure of a valid outstanding mortgage, under the circumstances alleged in this'complaint, could be granted.

Therefore, the order appealed from should be modified by striking out the portion appealed from granting the injunction, and as so modified affirmed, with costs to the appellant.

O’Brien, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.

■ Order modified by striking out the portion appealed from granting the injunction, and as so modified affirmed, with costs to appellant. Settle order on notice.  