Opinion
November 26, 1963
Order, entered on October 1, 1963, appointing a temporary receiver of partnership property, unanimously reversed on the law and on the facts, and in the exercise of discretion, without costs, and the motion for a receiver is denied. The appointment of a receiver of a going concern is a drastic remedy, and can properly be invoked only where there is a clear evidentiary showing of the necessity for the conservation of property and the protection of the interests of the litigant ( S.Z.B. Corp. v. Ruth, 14 A.D.2d 678). In this action for the dissolution of a partnership and for an accounting, it is shown that plaintiff's testator and defendants were partners for over 40 years before the death of plaintiff's testator in 1962. The business the partnership conducted was that of commission selling agents in the ready-to-wear apparel field. Plaintiff's papers, upon which the receivership was granted, fail to demonstrate any danger of the dissipation of the limited assets of this personal service business, or, in view of the nature of the business, that a receiver is necessary and would be able to continue the operation of the business so as to preserve plaintiff's interest. Under all of the circumstances, it was an improvident exercise of discretion to grant the motion for a receivership. While we do not condone the failure of defendants to permit plaintiff to have access to the books and records of the partnership, it seems that plaintiff's proper recourse for inability to obtain an examination of the books and records is not a destructive receivership but a vigorous prosecution of the action to an early trial. To that end, plaintiff may provide in the order to be settled hereon for an early trial of the action, dispensing with all pretrial procedures and for permission to file a statement of readiness and note of issue placing the cause on the calendar for trial. Settle order on notice.
Concur — Breitel, J.P., Rabin, Valente, Stevens and Bergan, JJ.