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Popper agt. Scheider.



Where it appears that the partnership between the plaintift and the defendants is

positively denied, that a very small proportion of the partnership capital was originally contributed by the plaintiff, and that by the allowance of an injunction and the appointment of a receiver, the large partnership business will be arrested and perhaps ruined, the order for an injunction and receiver will be set aside, on the detendants giving ample security that they will pay the plaintiff any sum

found to be due bim on a proper accounting. A provisional remedy is only auxilliary to ultimate relief, and should never usurp

or anticipate the office and effects of a trial on the merits.

Special Term, October, 1869.

SEVERAL days since, on affidavits made by the plaintiff that he was a partner in the firm of which the defendants were also partners, that the defendants had altered the style of the firm without his (plaintiff's) consent, so as to exclude any appearance of his having an interest therein ; that he was informed by them that he could go about his business, and that his interests in the business were endangered, applied for an order dissolving the copartnership and appointing a receiver. On the facts set forth the order was granted, and Mr. Thomas J. Barr, on filing the proper bonds, took possession of the copartnership property as receiver. Application is now made by defendants to set aside the injunction order, and also the order appointing a receiver. This motion was made on affidavits setting forth that the plaintiff was not a general partner; that the partnership property amounts to $60,000 or $70,000; that all the cash capital the plaintiff had therein, was $1,800, and an interest in the profits to the extent of seven and a half per cent., all the balance belonging to the defendants. The defendants also set forth that if the receiver be continued, and the order appointing him is carried out, the result will be

Popper agt. Scheider.

that their profitable business—a business which has been the result of years of industry, and which they (the defendants) have established at great expense and troublewill be ruined, and their prospects in life blighted. They also allege that the plaintiff has not instituted these proceedings so much to secure his interest or the moneys due him from the concern, as through malice, they having already offered to pay him bis $1,800, and also agreed to secure to him the further payment of any amount found to be due him on account of his share in the profits.

Under these circumstances the defendants appealed to the court to modify the order appointing the receiver, so as to allow them to give security in any sum the court may name, to the effect that they will pay plaintiff any sum found to be due him on a proper accounting; and that the order appointing such receiver be discharged, and they allowed to conduct and take care of their business as usual,

Wm. M. TWEED, JR. Of counsel for motion.
Mr. PORTER opposed.

McCunn, J. This action is in the nature of a suit in equity, in which the relief demanded is the dissolution of an alleged copartnership, and an adjustment of the partnership accounts, and in which, provisional relief is sought by an injunction and the appointment of a receiver. I allowed an interlocutory order for an injunction and the appointment of a receiver. The motion now is, to modify the order of injunction and appointing a receiver; and instead, to permit the defendants to file security to pay the plaintiff any sum that may be found due him on a final settlement of the partnership accounts. In view of the facts that a partnership between the plaintiff and defendants is positively denied, that a very small proportion of the partnership capital was contributed by the plaintiff, if, indeed, any were contributed by him in the character of partner; that by the allowance

Popper agt. Scheider.

of an injunction and the appointment of a receiver, the partnership business, which is very large and flourishing, will be arrested, and, perhaps, ruined ; and that, by the modification proposed, the plaintiff will be abundantly secured in all bis rights, absolute or contingent, I cannot doubt but the equity of the case requires a recision of the order of injunction and receivership, and the substitution of an order to the effect suggested. It is thus that a court of equity moulds and adapts the remedial relief it accords, so as to reach the ends of substantial justice without compromising the rights or interests of any party to the litigation. A provisional remedy is only auxiliary to ultimate relief, and should never usurp or anticipate the office and effects of a trial on the merits. If, on the final hearing, it appears that the plaintift was in fact a partner, and, as such, entitled to a share of the profits, he will on final judgment, have a decree for his proportion, and, in the meanwhile, the security exacted and given will guarantee him the full measure of relief to which he may show himself entitled. Order granted.

Rowe agt. Smith.


NELSON Rowe, respondent agt. CYRENE SMITA, appellant.

In an action against a married woman for trespass committed by her cattle upon the

lands of the plaintiff, her husband need not be joined as a party defendant. (BALCOM, J. dissenting.)

Sixth District, Binghamton, General Term, July, 1869.
Before Balcom, BOARDMAN and PARKER, Justices.

This action of trespass was brought in a justice's court, where the plaintiff recovered $20, and upon appeal the judgment was affirmed by the Cortland county court. An appeal was then taken to this court.

Hoyt and Smith, for appellant.
BALLARD and WARREN, for respondent.

By the Court, BOARDMAN, J. It is conceded that the cattle, horses and hogs of defendant, passed from her land upon the plaintiff's land, the fences between the two farms having been before that removed, and that damage was done to plaintiff's land and crops. Upon such a state of facts there can be no doubt, that the defendant is liable, unless the legal objections urged by the defendant on this appeal are well founded. Because the defendant is a married woman, it is insisted the action cannot be maintained, without joining her husband as a party. If we are governed by the Code as it was amended in 1857, ($ 114,) and has since stood, the wife could not be sued alone, except by her husband.

The husband must be joined except where she sues in respect to her separate property, or where the action is between husband and wife.

Rowe agt. Smith.

By the act of 1860, as amended by the act of 1862 (Laws of 1862, p. 343, dc.) “any married woman may sue or be sued in all matters having relation to her sole and separate property

* in the same marner as if she were sole.” “In an action brought or defended by any married woman in her name, her husband shall not-neither shall his property-be liable for the costs thereof, nor the recovery therein." 66 A married woman may be sued in any of the courts of this state, and when any judgment shall be recovered against any married woman, the same may be enforced bv execution against her sole and separate property in the same manner as if she were sole." The act of 1862, certainly modifies the Code (§ 114) and in its letter au thorizes the making of a married woman sole defendant in all matters touching her separate estate or arising therefrom.

Nor is there any reason founded on principle or authority by which actions ex delicto as well as actions ex contractu are not embraced in the above provisions.

The cases cited by appellant are of torts of a personal character, such as assault and battery, libel, slander, and for penalties in nowise affecting or arising from the separate estate of a married woman, and should be carefully distinguished from the class of torts frequently arising out of the ordinary conduct of business, such as negligence, trespass on land, trover, replevin, fraud, &c. The former, are the personal acts of the wife, for which the husband is held responsible, upon the theory, that he has the power to control the conduct of his wife.

But when the wife is allowed to conduct business independent of her husband, it would be very unjust that he should be held responsible for all her errors of omission or commission, and the law does not require it; a careful examination of the cases cited by the appellant, will show nothing in conflict with this distinction, and the following cases support the rule I have laid down, (Porter agt. Mount,

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