Bresky v. Power Crafts, Ltd. , 18 A.D.2d 1106 ( 1963 )

In an action to recover: (a) money loaned; and (b) damages for conversion, fraud and other alleged wrongful acts, the corporate defendant and the defendants Gross appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County, dated October 17, 1962, made upon reargument, as required said defendants to file a bond for $10,000 with corporate surety to secure the payment of any judgment which may be rendered in the action against them, as a condition to the opening of their default upon a pretrial examination and as a condition to the vacatur of a prior order, dated July 2, 1962, striking out their answer by reason of such default. Order of October 17, 1962, insofar as appealed from, reversed, without costs, and said condition requiring the filing of the bond deleted. The examination before trial shall proceed on 10 days’ written notice or at such other time and place as may be mutually fixed by the written stipulation of the parties. Upon this record, it cannot be said that the appellants’ default upon the pretrial examination was willful. It also appears that pursuant to a warrant of attachment plaintiff has already attached the assets of these appellants. Under all the circumstances we believe that it was an improvident exercise of discretion to impose the condition that the surety company bond be filed; it would appear that the imposition of such a condition was an unwarranted punitive measure (cf. Margolies v. Paris, 9 A D 2d 952; Mills v. Capello, 6 A D 2d 841). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.