Misc.] Supreme Court, January, 1896. which may be taken upon his motion. I am not willing to make a simple order directing the receiver to pay the petitioner's claim. I am willing, however, to grant an order which shall provide that upon the receipt by the receiver from the Produce Exchange of a sum of money which shall be sufficient to discharge the lien, and upon a satisfaction of the lien, duly executed, being tendered to the Produce Exchange, the amount due and payable upon the lien shall be forthwith paid by the receiver to the petitioner. To that extent the motion is granted. Ordered accordingly. WILLIAM MCDONOUGH, by Guardian, Plaintiff, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, Defendant. (Supreme Court - New York Trial Term, January, 1896.) NEW YORK CITY-SECTION 1104 OF THE CONSOLIDATION ACT DOES NOT APPLY TO ACTIONS EX DELICTO. Section 1104 of the New York Consolidation Act, prohibiting the commencement of actions against the city until thirty days after the presentation of the claim to the comptroller, does not apply to actions for personal injuries alleged to have been caused by negligence. MOTION by the plaintiff for a new trial. James R. Angel, for motion. William H. Rand, Jr., opposed. GIEGERICH, J. This action is brought for the recovery of damages for injuries alleged to have been caused by defendant's negligence. Before plaintiff opened his case the defendant moved to dismiss the complaint on the ground that the former had not complied with section 1104 of the Consolidation Act (Laws of 1882, chap. 410), which provides as follows: "No action or special proceeding shall be prosecuted or maintained against the said mayor, aldermen and commonalty unless it shall appear by, and as an allegation in, the complaint or neces Supreme Court, January, 1896. [Vol. 15. sary moving papers, that at least thirty days have elapsed since the claim or claims upon which said action or special proceeding is founded were presented to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment." The plaintiff admitted that no such claim had been presented to the comptroller, and as the complaint contained no other allegation as to the preliminary proceedings, save that notice of the intention to commence an action had been filed with the counsel to the corporation, pursuant to chapter 572 of the Laws of 1886, it was dismissed. My attention has since been called to the decision in the case of Harrigan v. City of Brooklyn, 119 N. Y. 156, which appears to be adverse to the position contended for by the defendant. In that case the court of last resort passed upon a provision contained in the charter of the city of Brooklyn (Chap. 583, Laws of 1888, tit. 22, § 30) similar in all respects to the one above cited, and it was there held that "the words 'claim or account' in connection with the purpose of presentation and the designation of the officer to whom the presentation is to be made naturally indicate claims on contract which may, in ordinary course, be adjusted by the comptroller or chief financial officer or officers of the city, the justness of which may be ascertained by the summary method of examination provided," and hence it did not apply to claims arising ex delicto. The principle of this decision has since been followed in the case of Sherman v. Village of Oneonta, 21 N. Y. Supp. 137; 49 N. Y. St. Repr. 267, and is, in my opinion, controlling in this case. It, therefore, follows that the dismissal of the complaint was error and a new trial should be granted, with thirty dollars costs to the plaintiff to abide the event. Motion granted, with thirty dollars costs to plaintiff to abide event. Misc.] Supreme Court, January. 1896. JOEL S. MASON et al., as Executors, Plaintiffs, v. JOHN DAWSON et al., Defendants. (Supreme Court - New York Special Term, January, 1896.) 1. PARTNERSHIP - RECEIVER. Where the articles of copartnership provide that in the event of the death of either partner the business shall be closed by the surviving partners as soon as possible, but without prejudice to its interest, of which the surviving partners shall be the judges, a receiver will not be appointed to wind up the business where there is no charge of fraud against the surviving partners, and no proof that they are wasting the assets or are insolvent, and the delay is not unreasonable. 2. SAME-FIRM NAME. The right to continue the use of the firm name belongs to the surviving partners and cannot be transferred with the good will of the business. MOTION for the appointment of a receiver pendente lite. Leeds, Patrick & Ironside, for plaintiffs. John F. Clarke, for defendants. BEEKMAN, J. This action is brought by the executors of a deceased partner against the surviving members of the firm of J. W. Mason & Co., for an accounting and the appointment of a receiver to wind up the affairs of the copartnership. A motion is now made for the appointment of a receiver pendente lite. It is provided by the articles of copartnership that "in the event of the death of either of the partners the business shall be closed by the surviving partners as soon as possible, but without prejudice to its interest, of which the surviving partner or partners shall be the judges, but the executors, administrators and assigns of the deceased members shall have access to all the books and papers of the concern, and shall have the right to require and receive written statements every three months as to the condition of the business, but the time of closing the business shall not extend beyond one year from the death of the partner without the written consent of all Supreme Court, January, 1896. [Vol. 15. of the surviving partners, together with the consent of the executors, administrators and assigns of the deceased partner." It will thus be seen that the defendants were entitled, not only as matter of law independent of any agreement, but also by virtue of an express provision contained in the articles, to wind up the affairs of the copartnership. Unless, therefore, it clearly appears that the surviving partners are not properly performing their duties in this regard, the court will not interfere and deprive them of their right by appointing a receiver. The remedy is a drastic one, and experience seems also to show that the administration of business affairs through such an agency is frequently attended by large expense and unfavorable results. I do not think that the facts on which the application is made are sufficient to justify me in grauting the application. There is no charge of fraud against the surviving partners, nor is there any specific proof that they are wasting the assets of the concern; nor is there any allegation that they are insolvent or would be unable to respond for any liability incurred by them in respect to their management of the copartnership affairs. While there is some suggestion of a lack of readiness to comply with the requirements of the copartnership articles in rendering accounts to the executors of the deceased partner, the proof is not sufficient to justify me in finding that there has been a violation of that duty. It is also true that more than one year has expired since the death of Mr. Mason, and the business has not yet been closed as required by the articles. But the proofs tend to show that the defendants in this respect acted in good faith, believing that the interests of all concerned would be greatly prejudiced by a close observance of this requirement. In this respect the defendants may have been remiss, but as they have since expressed their intention to close out the business forthwith, and to realize upon its assets, I do not think that this circumstance of itself calls for the appointment of a receiver. In fact, an examination of the affidavits presented by both sides clearly shows that the only substantial dispute between Misc.] Supreme Court, January, 1896. the plaintiffs and the defendants arises out of a claim made by the plaintiffs, which the defendants deny, that in selling the assets and good will of the partnership the right to a continued use of the copartnership name should be transferred with the good will. The defendants insist that, as surviving partners, they alone are entitled to continue the use of the old copartnership name. If the plaintiffs are right in their contention, I think a sufficient reason for the appointment of a receiver would exist, but I find myself unable to adopt the view which they have taken. The firm name of J. W. Mason & Co. was not a trade mark, and the cases dealing with the transferability of names when used for such a purpose are, therefore, inapplicable. The weight of authority seems to support the view that the right to continue the use of the copartnership name is one which vests exclusively in the surviving partners. Caswell v. Hazard, 121 N. Y. 484; Blake v. Barnes, 12 N. Y. Supp. 69. The statute authorizing the continued use of the copartnership name was rendered necessary by the pre-existing statutory provision forbidding the use of a name in a copartnership title which was not that of one of the partners. The prohibition, therefore, continues in force except in so far as it has been so modified, and that modification extends only to cases of firms having business relations with foreign countries, or which have transacted business in the state for a period of three years or upwards, where the business shall be continued by some or any of the partners, their assigns or appointees. In cases of a dissolution by the death of one of the partners, I think it is quite plain that it was the legislative intent that the right to the continued use of the old firm name should pass to and be controlled by the survivors. In the case of Blale v. Barnes, supra, this same question was quite elaborately discussed by Mr. Justice BARRETT, who came to the conclusion "that while the good will is concededly an asset, the right to continue the business under the old firm name belongs to the surviving partners." While I am of the opinion, as I have said, that the facts |