Knudsen v. Friedery

27 Misc. 98, 57 N.Y.S. 581

Opinion

Giegerich, J.

The plaintiff moves for a continuance of a preliminary injunction heretofore granted, pending his action for a dissolution of a copartnership, and the defendant’s counter motion is to set aside the service of the preliminary injunction order for failure of service of a copy of the undertaking required by such order, and recited therein. The merits of the case, upon the undisputed facts, are wholly with the plaintiff, and I have no hesita^tion in granting the motion to continue the injunction. As to the service of the preliminary order it may be that the failure to serve , the undertaking is an irregularity, which, in a proper case, would suffice to cause the court to disapprove the service (1 Rumsey’s Practice, 485, and cases' cited), but there is no doubt that the irregularity may be cured and the service upheld, even where the undertaking was not in existence at the time of such service (Manley v. Leggett, 62 Hun, 562), and the matter is, therefore, one to be dealt with in the discretion of the court. Here the plaintiff’s good faith is apparent, and the defendant’s is certainly not, and. no technical point, which may properly be avoided, should be adopted at the latter’s insistence. Plaintiff’s motion granted, order to contain a direction'for the service of a copy of the undertaking nunc pro tunc: defendant’s motion denied. Ten dollars costs of one motion to plaintiff.

Ordered accordingly.