New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-12-09
SUPERIOR CoURT-srrcIAI TERN.

Before Mr.. Justice Fithidn.-Ihe Suspension
Ozark agt. Abraham Bu,iiger.-rhis is action, as
already reported by copartner 10 dissolve the partner
was appointed er paTte. A motion subsequently,
made 20 dissolve such injunction and set aside the order
appointing Receiver, ana on TINS motion Judge tltDian
has rendered opinion Of which the substance is as
follows The fact Ia the view OF the Judge are that the
parties 10 the suit 1921 formed partnership with
Fisher who Till 1896 the chief manager about that
time he left the nrm ana Clark Was G Isei
business crippled by the outbreak OF the war
and the cessation Of payments from the south that an
arrangement WAs made mat biIhgef shouIu i9an tle
planin 45OO 10 be used in the business plaintiff giving
absolute bill o. sale OF his interest in the firm as secu-
Tty. A Dew nrm then formed, continuing the name
OF the old firm, which Bininger was To have the prop
u Clark One-half OF the prOts after taking out
$500 10 Bnugcr as compensation for the use o. his CAPT
Ia. AT time Bninger executed an instrument
ecng the above stated ana agreeing 70 reconvey
Clagk time during the partnership hs half Of
Ine stock Tor $4,000 Clark agreeing
appropriate all the excess Of ms profits over
5000 70 such purchase Part OF the assets conveyed by
Clark book accounts, amounting TO about
$4,000. The hrm was 10 terminate March l, 1906,
OF on u dale notice u ebcr to the other On the 4th O
November, 1862 BiDinger gave notice OF dissolution or
the partnership fOT the 10Th In the complaint which,
for the purpose OF this motion the Judge accepts as
true, that but S4OO was really paid In by Binnger that
book $S5,OOO had Oeen collected OF which
ohtIali should nave Dteh crSuteu 70 pann' that III
July 1865. nc paid in m real estate t2SG3 lJ that on
the 9t 81 November 1907 he nOted defendant That he
appropriated out OF the profits belonging 70
him sufficient 10 pay the balance due. The complaint
charges the defendant with various violations OF the
agreement partnership il says IN 1865 and 1866
under plaintiffs sole charge the business netted tG0OO
$4,000. and at present are over s5OO,GJg with
but S2OO.OOJ Of debt. This complaint verified
n FORM aud ground Of the motion H. that there
h sufficient aihdavt To maintain Injunction. Judge
Fihlau while recognizing the rulings u complaint
with the ordinary aud usual jurat is sufficient III
daVL injunction. holds that where the
allegations tue complaint made positively aud
information aud belief merely, which ALLEGATIONS
10 he true 1t may be taken and treated AMI
aaylt And az with two trivial exceptions, ths
comp slated on knowledge, II is enough Beside
abe ordinary yercatioD, however there is another AFT
referring To the complaint and stating that all the
facts therein stated Information and belief
true holds sufficient. Another objection taken
That plaintiff had failed 70 establish any appar
eat interest the property. That upon his own showing
he had interest IN the property, Dut only
in the prOnLs, but Judge FitbEan holds
LBat Tires articles Of agreement taken together,
with attendant circumstances preclude the idea at
a. wac intended thai plaintiff equal partner for 40
years and VI Onehan Of the property OF the
nrui valued at s3OcOO and upward should dlyest hin-
sell wholly OF all mat interest 20 borrow HoVO lot tue
of the business Ills partner aud become mere
cIk The viii bear no such construction ana
plaintiff uust Dc considered as JOINT owner WITH hls
partner firm property subject as 10 Ills UNDIVIDED
pIs Btih defendant st unpald-a mortgage which has
beeu fUrecsed. The mortgage lac holds dld DOT
broOIne absolute March ], 1860 II that closed the
poo iVd intended for the mortgage defendant wOulu sun
" fUfeclOsc by form But the mortgage dlu
not then become due the partnership being con.
under provision Of tbs original agreement lie
'Ods Therefore, that there must be Receiver; Dut,
ui view O tho apparently very unpieasaht relauohs
eGHtIng between the parties, aud the grave chhIRes
aialo by the iaihh against the defendant he dtcHhes
~ appoint the latter Receiver As 10 tie person already
appointed kceeiyef, while direct charge Of unhtness
alieR against nln yet u 10 SAID he n stranger 10
tao paitIes Hnd haS not gwen adequate security anu