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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.
Document Info
Citation Numbers: 29 N.Y. Sup. Ct. 571
Judges: Barrett, Brady, Cdriam, Davis
Filed Date: 11/15/1880
Precedential Status: Precedential
Modified Date: 2/4/2022