Devlin v. Hope

Leonared, J. If a receiver of the contract between Hackley and the Corporation of Hew York were to be appointed, its farther performance must be carried on under the direction of the court, or else its performance must be abandoned. The inquiry arises, where are the funds to be obtained to meet the outlay necessarily required for the payment of workmen, &e., should a receiver, under the direction of the court, attempt such an enterprise ? It is manifest, from the statement of the proposition, that such a scheme cannot be attempted without the concurrence of the majority of the parties in interest. * The trustee might be charged, perhaps, if a proper case were made for such an application. An injunction or receiver would be to destroy the value of the contract, unless it was so arranged that the work of cleaning the streets could continue to be performed. The motion is made upon the complaint, not sustained by other corroborating evidence. The trustee has fully denied all the charges of the complaint, except the allegations that he has refused to account to the plaintiff, and that other defendants have received money which [319] the trustee ought to have collected, and which the others had no right to receive. There can be no doubt, on the case shown by the complaint, that the plaintiff is entitled to see the books of the trustee, and to know how he has expended the money which has come to his hands, as well as what money he has collected. It is not suggested, however, that the trustee is irresponsible. The omission fully to answer the allegations of the complaint referred to does not disclose such turpitude or misconduct on the part of the trustee as will, under the circumstances of this case, justify this court in interfering so far as to appoint a receiver or to continue the injunction. It is an important fact that the plaintiff represents an interest equal to one-eighth only, while the other larger interests concur in opposing the plaintiff’s application. It may be that the plaintiff can, by taking evidence, make his case stronger to support his present application. It is proper, therefore, to allow him to renew the motion whenever he can present such additional proof. The motion will be denied, with leave to renew on additional evidence. The usual costs of motion will abide the event.