McElvey v. . Lewis

76 N.Y. 373, 1879 N.Y. LEXIS 509

• Court: New York Court of Appeals
• Decided: March 18, 1879
• Status: Published

Opinion

Danforth, J.

The parties to this action on the 30th of September, 1876, became partners under written articles of agreement. Ho time is named for the continuance of the partnership, nor any provision made for the settlement of its concerns upon dissolution. It was therefore dissolvable at the will of either partner. (Story on Partnership, § 269.) In this instance, the plaintiff indicated by written notice his election to dissolve the partnership ; and as the defendant by his answer also asks that the articles of partnership bo canceled and vacated, it is not easy to see why ho appealed from so much of the judgment as ordered the partnership dissolved. In the absence of any provision in the partnership agreement as to the division of property or manner of closing its affairs, it was proper to appoint a receiver. (Law v. Ford, 2 Paige, 310; Martin v. Van Schaick, 4 id., 479;) and Lord Eldon, in Goodman v. Whitcomb (1 Jac. & Walker, 569), says : If the court can see that a dissolution must bo declared, “ it follows very much of course that a receiver must bo appointed.” This is the general rule, and no sufficient reason is suggested for making this case an exception. It is doubtless true, as the appellant argues that a receiver will not be appointed for the mere reason that the partners quarrel, but that is because this will not of itself be a sufficient ground for severing the connection between them. (Collyer on Partnership, 197.) In the case before us, the partnership has been dissolved, and the defendant’s answer shows that there is property, concerning the division of which the parties have not agreed, and other property, the lease and good will, in regard to which there is a difference ; the defendant claiming the whole interest in both to the exclusion of the plaintiff.

The judgment should bo affirmed, with costs.

All concur.

Judgment affirmed.