McCann v. Schnitzler

228 A.D. 647

Opinion

— Order denying motion to dismiss complaint for plaintiff’s failure to furnish additional corporate security in the sum of $3,750reversed upon the law and the facts, with $10 costs and disbursements, and motion granted, without costs, to the extent of enjoining plaintiff from prosecuting the action unless plaintiff, within five days from service of a copy of the order herein, comply with the order of this court, dated April 2, 1929, directing the plaintiff to furnish additional security. In the event of compliance therewith, the order denying motion to dismiss the complaint is affirmed, without costs. Kapper, Hagarty and Carswell, JJ., concur; Lazansky, P. J., and Seeger, J., dissent, being of opinion that under the circumstances the court has no power to enjoin the prosecution of the action until the undertaking on attachment has been given, as directed by this court. We know of no authority which warrants the visitation of such an extreme penalty in such a case. If there were proof of bad faith in obtaining the attachment or in procuring the appearance of defendants, a different situation might be presented.