Steinberg v. Goldstein

BARNARD, P. J.

This is an action for the dissolution of a partnership, for an accounting, and for damages. The defendant appealed from an order approving a report and

[517]

account filed by the receiver. The plaintiff has moved to dismiss that appeal on the grounds that the defendant failed to pay the estimated costs of preparing the transcripts within the required time, and that the order appealed from is interlocutory and not an appealable order. The defendant has moved for relief from his default in connection with such costs, on the ground of inadvertence, surprise or excusable neglect; and further contends that portions of the order appealed from are final in nature.

With respect to the default it appears that the clerk served notice of the estimated cost of preparing the transcripts on appellant’s attorneys on September 22, 1953, that payment was not made within 10 days, and that on October 26, 1953, counsel for appellant tendered to the clerk $696.50, the required amount. It further appears that upon receiving notice of the amount due, the appellant’s counsel wrote to him advising him of the necessity of making this payment; that because of the appellant’s absence from the state he did not see this letter until October 19th or 20th; and that within three days thereafter he sent the amounts to his counsel, which were by him deposited with the clerk. A sufficient showing is made to justify the granting of relief in this regard.

The main contention is with respect to the finality of the order appealed from. It appears in this connection that the receiver filed what was designated as a final report and account. The court modified the same by its findings, and allowed and approved it as an interim report and account. In its order the court allowed fixed sums as compensation for the receiver and for his attorney; ordered the appellant to deliver to the receiver within five days a large number of articles of personal property, fixing the value thereof as $3,002.94; fixing the annual rental value of these items as 27 per cent of said market value; ordering the appellant to pay said rental valué to the receiver within five days or to return said property to the receiver; ordering the appellant to pay to the receiver within five days a further sum of $9,857.09; ordering the receiver to sell certain personal property; ordering the receiver to pay his compensation and attorney’s fees, and to pay further specified bills amounting to $2,667.41; and ordering the receiver to hold any money remaining in his possession subject to the further order of the court.