Randall v. Carpenter — 29 N.Y. Sup. Ct. 571

Majority

p. 571

SAMUEL H. RANDALL, Appellant, v. JOSIAH CARPENTER and others, Respondents.

Headnote

Injunction — insolvency of one of the sureties to an undertaking, given on the granting of an injunction — remedy of the pa/rty enjoined.

The insolvency of one of the sureties to an undertaking given by the plaintiff, upon procuring an injunction, furnishes no ground for the granting of an

p. 572

order staying generally all proceedings on the part of the plaintiff in the: action; the order should direct that the injunction be dissolved, unless the plaintiff file a new undertaking, within a specified period, ■:

Appeal from an order made at Special Term, staying all the plaintiff’s proceedings in the action, until he should file a new undertaking in lieu of the one heretofore filed by him, on the ground that one of the sureties thereto had became insolvent, and left the State.

Samuel H. Pcmdall, for the appellant, in person,

Ed/wa/rd P. Wilder, for the respondents.

The defendants mistook their remedy. The ■ insolvency of one of the sureties upon the injunction undertaking, was no ground for staying plaintiff’s proceedings generally. The temporary injunction could have been dissolved, unless a new and sufficient surety were supplied. But that was all. The action was not dependent upon the provisional remedy. The granting or withholding of the latter was a matter of discretion. But the prosecution by the plaintiff of his action was a matter of right.

The order should have directed that the injunction be dissolved, unless the plaintiff file a new undertaking as directed in the present order, within a specified period. A modification to that effect may now be made, and the order is so modified without costs of the motion, or of this appeal.

Present — Davis, P. J., Brady and Barrett, JJ.

Order modified as directed in opinion, without costs of the motion, or of the appeal.