Brooks v. Brooks

60 A.D.2d 618, 400 N.Y.S.2d 153, 1977 N.Y. App. Div. LEXIS 14587

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 1977
• Status: Published

Opinion

In a matrimonial action wherein the plaintiff seeks to acquire title to property owned by the defendant in this State, plaintiff appeals from so much of a resettled order of the Supreme Court, Westchester County, entered March 4, 1975, as required her to post a bond to indemnify the intervenor-respondent, Webb, Brooks & Brooker, Inc. Order modified by (1) adding to the sixth decretal paragraph thereof a provision that the undertaking to be filed by plaintiff be a personal undertaking and (2) deleting from the sixth decretal paragraph thereof the provision that the undertaking indemnify against the wrongful acts of the defendant. As so modified, order affirmed insofar as appealed from, without costs or disbursements. The defendant is the record owner of a one-third stockholder’s interest in the firm of Webb, Brooks & Brooker, Inc. The plaintiff applied to the court to be appointed receiver in sequestration proceedings with respect to her husband’s property. Her application was granted. She proceeded against the one-third stock interest noted above on the ground that defendant’s whereabouts and the physical situs of the stock certificate are both unknown. In our opinion, the interests of justice required that the undertaking to be delivered by plaintiff be a personal one. Further, plaintiff should not have been required to indemnify the corporate intervenor against the defendant’s wrongful acts. Gulotta, P. J., Hopkins, Latham and Cohalan, JJ., concur.