Bresky v. Power Crafts, Ltd.

Appellate Division of the Supreme Court of New York

Bresky v. Power Crafts, Ltd.

18 A.D.2d 1106, 239 N.Y.S.2d 938, 1963 N.Y. App. Div. LEXIS 3851

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 29, 1963

StatusPublished

This text of 18 A.D.2d 1106 (Bresky v. Power Crafts, Ltd.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bresky v. Power Crafts, Ltd., 18 A.D.2d 1106, 239 N.Y.S.2d 938, 1963 N.Y. App. Div. LEXIS 3851 (N.Y. Ct. App. 1963).

Pincite

Opinion

In an action to recover: (a) money loaned; and (b) damages for conversion, fraud and other alleged wrongful acts, the corporate defendant and the defendants Gross appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County, dated October 17, 1962, made upon reargument, as required said defendants to file a bond for $10,000 with corporate surety to secure the payment of any judgment which may be rendered in the action against them, as a condition to the opening of their default upon a pretrial examination and as a condition to the vacatur of a prior order, dated July 2, 1962, striking out their answer by reason of such default. Order of October 17, 1962, insofar as appealed from, reversed, without costs, and said condition requiring the filing of the bond deleted. The examination before trial shall proceed on 10 days’ written notice or at such other time and place as may be mutually fixed by the written stipulation of the parties. Upon this record, it cannot be said that the appellants’ default upon the pretrial examination was willful. It also appears that pursuant to a warrant of attachment plaintiff has already attached the assets of these appellants. Under all the circumstances we believe that it was an improvident exercise of discretion to impose the condition that the surety company bond be filed; it would appear that the imposition of such a condition was an unwarranted punitive measure (cf. Margolies v. Paris, 9 A D 2d 952; Mills v. Capello, 6 A D 2d 841). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.

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In an action to recover: (a) money loaned; and (b) damages for conversion, fraud and other alleged wrongful acts, the corporate defendant and the defendants Gross appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County, dated October 17, 1962, made upon reargument, as required said defendants to file a bond for $10,000 with corporate surety to secure the payment of any judgment which may be rendered in the action against them, as a condition to the opening of their default upon a pretrial examination and as a condition to the vacatur of a prior order, dated July 2, 1962, striking out their answer by reason of such default. Order of October 17, 1962, insofar as appealed from, reversed, without costs, and said condition requiring the filing of the bond deleted. The examination before trial shall proceed on 10 days’ written notice or at such other time and place as may be mutually fixed by the written stipulation of the parties. Upon this record, it cannot be said that the appellants’ default upon the pretrial examination was willful. It also appears that pursuant to a warrant of attachment plaintiff has already attached the assets of these appellants. Under all the circumstances we believe that it was an improvident exercise of discretion to impose the condition that the surety company bond be filed; it would appear that the imposition of such a condition was an unwarranted punitive measure (cf. Margolies v. Paris, 9 A D 2d 952; Mills v. Capello, 6 A D 2d 841). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.

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Bluebook (online)

18 A.D.2d 1106, 239 N.Y.S.2d 938, 1963 N.Y. App. Div. LEXIS 3851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bresky-v-power-crafts-ltd-nyappdiv-1963.