Gustavus A. Waeber and Walter Lea, Appellants, v. Leo Rosenstein and Others, Respondents

Gustavus A. Waeber and Walter Lea, Appellants, v. Leo Rosenstein and Others, Respondents. Receiver of booh accounts, pendente lite, not appointed where the plaintiff’s success is improbable and the defendants are solvent. In an action brought by judgment creditors of one Rosenstein to set aside his transfer of certain book accounts to the defendants Weingarten, in which it was alleged that the transfer was fraudulent, and that the indebtedness to secure which the transfer was made was fictitious, the allegations of fraud were put in issue by the defendants Weingarten,-whe alleged that they were accommodation indorsers of Rosenstein’s paper and were engaged- in a large business and were worth §150,000. Held, that it could not be said that there was any such probability of the plaintiffs succeeding as would justify the court in disturbing the Weingartens in their possession of the accounts, and that, furthermore, as it appeared that the Weingartens were abundantly responsible, the appointment of a receiver was not necessary for the protection of the plaintiffs’ rights. Appeal by the plaintiffs, Gustavus A. Waeber and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 23d day of April, 1896, denying their motion for the appointment of a receiver. F. De Lysle-Smith, for the appellants. Emcmuel Elumensteil, for the respondents. [MAJORITY — Patterson, J.:] Patterson, J.: The plaintiffs appeal from an order denying their motion for the appointment of a receiver, pending suit, of certain book accounts and the proceeds thereof, transferred by Leo Rosenstein, one of the defendants, to the defendants Weingarten. The plaintiffs are judgment creditors of Rosenstein, and they brought this action to set aside the transfer of the book accounts, which were assigned to the Weingartens to secure the latter for an indebtedness of Rosenstein to them. The plaintiffs allege that this assignment was made in fraud of creditors, and seek to reach the accounts and their proceeds in the hands of the Weingartens. The affidavits used by the plaintiffs on the motion are to the effect that the indebtedness for which these book accounts were transferred was a fictitious one. In answer to that, the defendants Weingarten show the nature of the transaction and their relation to Rosenstein at the time the assignment of the book accounts was made; that Rosenstein, who carried on the business of a grocer in Franklin street in the city of New York, requested the Weingartens to indorse a promissory note for $1,650, in order that the same might be discounted for Rosensteinthat the indorsement was made and the note discounted at the Empire State Bank, which was the bank with which the Weingartens dealt;.that subsequently, Rosenstein being involved in financial difficulties, desired to secure-the Weingartens for their liability on the indorsement mentioned, and that under the advice of Goldsmith & Dougherty, attorneys, the arrangement was made for the transfer of the book accounts, and that the transaction was an honest and legitimate one. It further appeared that the Weingartens are merchants in large business, and are worth fully $150,000 over and above their debts and liabilities ; that they have answered the complaint in the action, and have put in issue all the allegations of fraud, and assert their right to the security. The court below, under the circum> stances, declined to take the book accounts or their proceeds from the possession of the Weingartens by appointing a receiver. In this-determination the court was right. Upon the issues made by the answer, and under the state of the affidavits, it cannot be said that there ■ is any such probability of the plaintiffs succeeding as would justify the court in disturbing the defendants Weingarten in their possession of .what was assigned to them as security, and there is not the slightest ground for apprehend-ding that if the plaintiffs should recover in the action the defendants Weingarten would not be able to respond in any amount for which they might be held liable. There is no danger whatever of the property being lost, and the appointment of a receiver is entirely unnecessary ;to the protection of any rights the plaintiff’s may have. The order appealed from must be affirmed, with costs. Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred. Order affirmed, with costs.