Alford v. Berkele , 36 N.Y. Sup. Ct. 633 ( 1883 )

Barnard, P. J.:

We are of the opinion that section 713 of the Code is not applicable to this case. The plaintiff and defendants are partners. The partnership has no fixed term to run, but may be terminated at the will of the parties. They disagreed and cannot harmoniously settle up the business. The partnership owes debts, and the plaintiff has a greater interest in the partnership, by reason of putting in a larger portion of the capital, than the other members of the firm. The complaint stated that the defendant Wild was a non-resident of the State, and kept away to embarrass the business by his neglect. The plaintiff applied for a 'receiver. The defendants, other than Wild, appeared by counsel and opposed. A receiver was appointed without notice to Wild. If the case is not under section 713, Code, the objection that Wild was not served, is not good. It was always the rule of the Court of Chancery to appoint a receiver in like cases without notice to a non-resident partner. (People v. Norton, 1 Paige, 17; Verplanck v. Mercantile Ins. Co., 2 id., 438; Bloodgood v. Clark, 4 id., 574.)

. There was then, and there is now, no way to serve a notice of motion out of the State. Section 713, Code, provides for eases in addition to cases specially provided by law.- Section 1947, Code, specially gives power to the court to appoint a receiver in cases of partnership.

. The order should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concurred.

Order refusing to vacate order appointing a receiver affirmed, with costs and disbursements.