Murphy agt. Board of Police, &c., of New York.

police or civil authorities, and at every public meeting of every racing association, &c.; and I understand him to claim that book-making is a perfectly legitimate and lawful business in this state.

After examining the act of 1877, I am of the opinion that the plaintiff's position in this respect cannot be sustained. The appliances which were used during the walking match, and which are described in the defendant's affidavit, seem to me to come directly within the language of the statute. The tables, books, boxes and blackboards, may fairly be classed as "apparatus" and "paraphernalia," and the "books," as books for the purpose of recording or registering bets or wagers. The fact that book-making has heretofore been publicly permitted, cannot of course have any weight as against the express language of the legislature, and I think that the plaintiff is not entitled therefore to the injunction which he seeks.

In the recent case of Haley agt. Creidge (reported in the Daily Register, March 11, 1882), before Mr. justice MCADAM of the marine court, it was held that book-making was only another name for gambling; and that all contracts made in furtherance of bets and wagers were illegal and void, and that no recovery could be had upon them in a court of justice. In that case the plaintiff sued the defendant to recover a sum of money, for services rendered in going on the race course and ascertaining, from the owners and others, the condition of the horses about to enter upon the race, so that the defendant might regulate his book and his betting upon the result. I entirely concur with the learned justice in the views which he expressed in that case, and think that if there is

any difference between the case at bar, and the case before him, the case at bar presents a stronger violation of the statute.

Entertaining these views, I might stop here; but I deem it proper to add, as already intimated, that even if the plaintiff was engaged in a proper and lawful calling, as the remedy which he invokes is an injunction to prevent his arrest, or the arrest of his employees, such a remedy should not be accorded

Murphy agt. Board of Police, &c., of New York.

to him, because an injunction does not lie merely to restrain an illegal arrest.

In the case of Birch agt. Cavanaugh (12 Abb. [N. S.], 410, 418) the general term of the third department held, than an injunction would not lie merely to restrain an illegal arrest, and that a citizen could not maintain an action to restrain aldermen of the city from acting as the common council, even where the acts sought to be enjoined include the arrest of the plaintiff. In that case the plaintiff and nine others of the members of the common council of the city of Albany brought an action against Cavanaugh and eight others, three of whom were the city marshal and his assistants, and the others were the remaining members of the board of common council. The object of the action was to enjoin the latter from assum. ing to act as the minority of the common council, and to enjoin the marshal and his assistants from executing their order to arrest the plaintiffs, and bring them in to an alleged meeting of the common council held by the minority. LEARNED, J., in delivering the opinion of the court, says: "I am not aware that injunctions are granted to restrain threatened arrests, and this is for a very good reason. If the person is illegally arrested, he has the prompt and efficacious relief by habeas corpus, and he has also redress from the wrong by an action of damages. Injury by an illegal arrest is not of such an irreparable nature that it cannot be compensated in damages. It is true that injunctions are sometimes granted where other remedies exist; but generally those are cases where the other remedy would be inadequate, not where, as in this case, the other remedy is ample. No authority was produced on the argument for an injunction to restrain threatened injury to the person."

It seems therefore, to me, conclusively to follow, that even if book-making is not a violation of the statute, the plaintiff is not entitled to a continuance of his injunction.

The motion to continue the injunction is denied, and the temporary injunction is vacated, with ten dollars costs.

Spiess agt. Rosswog.

N. Y. SUPERIOR COURT.

CASPER SPIESS, plaintiff and appellant, agt. CONSTANTINE RosswoG and HYPOLITE C. RosswoG, defendants and respondents.

Partnership-Lease— Trust― Leases held by partnerships part of good will of business — Expectation of renewal of the leases remains with the power of disposition of good will — Neither party can sever such expectancy for his own interest after dissolution.

Where a partnership firm are in possession of premises under certain leases held in the firm name where they carry on business, the interest of each partner in the leases is a part of the good will of the business and is a copartnership asset.

Where the partnership is dissolved by one of the partners by a notice, and after such dissolution the partner so dissolving procures a renewal of the leases in his name and the name of a new partner for a term of years:

Held, that the expectation of renewal of the leases remained with the power of disposition of the good will of the business, and neither party can sever such expectancy for his own interest after dissolution, and the common and joint interest of the firm still remain even after dissolution. General Term, April, 1882.

Before SEDGWICK, C. J., and FREEDMAN, J.

APPEAL by plaintiff from a judgment dismissing the plaintiff's complaint, entered upon a decision of a judge at special

term.

The action was for judgment that the defendants should be declared to hold, as trustees for a firm, certain leases obtained by them in their own name.

The plaintiff and one of the defendants, Constantine Rosswog, were copartners in business under the firm name of Spiess & Rosswog. The firm held leases, to end May 1, 1881, of the premises, in part of which the firm business was done. On December 31, 1880, the partnership was dissolved, as the judge found. On January 3, 1881, the partners agreed to VOL. LXIII 51

Spiess agt. Rosswog.

carry on the liquidation of the business together upon the premises occupied by the firm, to work up the old stock and dispose of it. On January 14, 1881, the defendant Constantine Rosswog and his son, the codefendant, who had knowledge of the circumstances, procured new leases of the premises for three years from May 1, 1881. The complaint was dismissed.

D. M. Porter and George H. Kracht, for appellant.

Olin, Rives & Montgomery, for respondents.

SEDGWICK, C. J.-The fact in this case which the learned counsel for the respondents argues distinguishes it from those cases in which the partner, taking a renewal of the partnership leases, has been held a trustee of the firm, is that the defendant Constantine Roeswog obtained them after the firm was dissolved. This dissolution did not annul or change those relations between the parties which are the basis of the obligation in such cases. After the dissolution the original leases remained partnership property for the purpose of liquidation. The obligation of each partner to deal with them, not for his individual benefit but for the common or joint interest, remained. The trust as to the use of the partnership property remained attached to these leases, as part of their value was the so-called expectation of renewal. This is deemed so actual and vital that when a new lease is had it is considered to be a graft upon the old. If there had been in the old lease a covenant for renewal the defendant could not defend his taking the benefit of that individually, any more after than before the dissolution, while it remained the subject of division or disposition between the parties. The parties were not mere tenants in common when sometimes each may act for himself, as it has been pointed out; there were mutual obligations extrinsic of the mere nature of the tenancy. Indeed, in looking at the case it appears that the title to the term was not nominally in the individuals, but in the firm of Spiess &

Van Kleeck agt. Nichols.

Rosswog. The influence of this becomes stronger when the relation of the firm leases to the good will of the business is considered. The good will was an asset of the firm and to be disposed of for the common benefit of the partners. It substantially was the probability that the customers of the old firm would resort to the successors of that firm. The value of the good will would be materially affected by the successors of the firm being able, or not being able, to do the business in the same premises. It is proper, then, that the expectation of renewal should remain with the power of disposition of the good will, and that neither party should sever them for his own interest, or if he do obtain the new lease he should hold it for the firm that the two may be disposed of together. On the argument nothing was placed on the fact that the new leases were to the son of Constantine Rosswog and the latter. The rights of the parties were not affected by that. For these reasons I am of the opinion that the judgment should be reversed and a new trial ordered, with costs of appeal to appellant to abide event.

FREEDMAN, J., concurs.

SUPREME COURT.

THEODORE VAN KLEECK agt. HENRY A. NICHOLS.

Stay of proceedings—not void under rule 37, though granted within nine days of a circuit at which the cause is noticed for trial, and by a judge other than the one who is to hold the circuit.

Rule 37, though a wise rule which a judge could properly respect, is inconsistent with the statute respecting the granting of stay of proceedings. A judge of the supreme court has power by law to stay proceedings in an action, and no rule can prevent the operation of his order. There is no power in the court or another judge, without notice, to vacate such order. A vacation without notice can only be granted by the judge who made the order.

Ulster Special Term, July, 1882.