Opinion
December Term, 1900.
Present — Van Brunt, P.J., Rumsey, Patterson, Ingraham and Hatch, JJ.
Order reversed, with ten dollars costs and disbursements, and motion for appointment of receiver denied, with ten dollars costs.
The order appointing a receiver pendente lite of the promissory notes and stock, the subject of this action, must be reversed. There was no sufficient reason shown for taking this property from the possession of the defendant. He was entitled to the notes and the stock pledged as collateral thereto, under the terms of an agreement which, upon the plaintiff's own showing, was deliberately entered into by him with the defendant. The allegation of the complaint is that the agreement was entered into by reason of a false statement made by the defendant which induced the plaintiff to give the notes and the stock; and that alleged false statement was to the effect that an anterior agreement relating to the same subject, but upon different terms, had not been signed by the defendant; whereas the plaintiff alleges upon information and belief that it had been signed, and thus there was a subsisting agreement by which the rights and relations of the parties were regulated, and that the new agreement under which the notes and stock were given, being thus induced by fraud, was ineffective, and the plaintiff was entitled to the surrender of his promissory notes and the stock collateral thereto. The defendant positively denies and negatives the charge of fraud. Upon that simple issue, with a bare affirmation on one side and a negation on the other, the court at Special Term has taken property to which the defendant is entitled under an agreement from his possession and turned it over to a receiver. It is scarcely necessary to say more than that under such circumstances the order should be reversed, with costs, and the motion for the appointment of a receiver denied, with costs, but without prejudice to the right of the plaintiff to move on a proper case made for an injunction to restrain the defendant from parting with the notes or stock. Order reversed, with ten dollars costs and disbursements, and motion for appointment of receiver denied, with ten dollars costs.