Randall v. Carpenter

29 N.Y. Sup. Ct. 571

Opinion

Per Cdriam:

The defendants mistook their remedy. The ■ insolvency of one of the sureties upon the injunction undertaking, was no ground for staying plaintiff’s proceedings generally. The temporary injunction could have been dissolved, unless a new and sufficient surety were supplied. But that was all. The action was not dependent upon the provisional remedy. The granting or withholding of the latter was a matter of discretion. But the prosecution by the plaintiff of his action was a matter of right.

The order should have directed that the injunction be dissolved, unless the plaintiff file a new undertaking as directed in the present order, within a specified period. A modification to that effect may now be made, and the order is so modified without costs of the motion, or of this appeal.

Present — Davis, P. J., Brady and Barrett, JJ.

Order modified as directed in opinion, without costs of the motion, or of the appeal.