Morse v. Van Ness ( 1913 )

Per Curiam:

Without expressing any opinion upon the merits of the controversy between the parties, it is sufficient to say that in our opinion the plaintiffs have made out a case justifying the granting of their motion for the appointment of a receiver pendente lite, and for a restraining order preventing the transfer by the respondent of any property constituting in whole or in part the subject-matter of this action. The plaintiffs have shown an apparent right to or interest in the property involved herein, based not only on the judgment in the action of Harmon v. Van Ness, but also on the will of Emma Louise Van Ness. Such property is in the possession of the defendant Alice Wood Van Ness, and it sufficiently appears that there is grave' danger of its transfer, gift or other disposition pending the termination of this action, a conclusion which is supported by the disposition concededly already made by the respondent of a large portion thereof. It appears as well that, unless the relief sought is granted, a final judgment in favor of the plaintiffs will be ineffectual, for the respondent is financially irresponsible save for the property in controversy still remaining in her possession. We are of the opinion, therefore, that the interests of justice will be best served by the appointment of a receiver of the property involved in this action pending the trial of the action itself, and by requiring respondent to "turn over to said receiver all the property involved herein which is still in her possession; said order, however, to provide that, pending the determination of the action, the income derived from said property so deposited with the receiver shall be paid over to the respondent for her maintenance and support.

The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the application for a receiver and injunction granted as hereinbefore indicated, with ten dollars costs.

Present—Ingraham, P. J., McLaughlin, Laughlin, Scott and Dowling, JJ.; Laughlin, J., dissented.