McCann v. Schnitzler

228 A.D. 646

Opinion

— Order reversed upon •the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. This court, by order dated April 2, 1929, directed the plaintiff to furnish additional security within ten days. The Special Term was without power to relieve the plaintiff of this obligation, either directly or indirectly. Kapper, Hagarty and Carswell, JJ., concur; Lazansky, P. J., and Seeger, J., dissent with the following memorandum: Plaintiff was unable to comply with the order of this court. The Special Term had the power, under the circumstances, to vacate the attachment. There is no proof of bad faith in procuring the attachment or inducing an appearance on the part of defendants. Of course, the order to vacate must be without prejudice to defendants’ rights on original undertaking.