Opinion
Action by James T. Holahan against Antoinette L. Holahan to enjoin defendant from enforcing a judgment previously obtained against plaintiff. On order to show cause why defendant should not be so restrained pending trial of action.
Temporary stay previously granted vacated and further stay pending determination of action denied.
Walter S. Forsyth, of Rochester, N.Y., for plaintiff.
William B. Gelb, of Rochester, N.Y., for defendant.
KNIGHT, District Judge.
The defendant herein heretofore procured a judgment against the plaintiff herein, has issued an execution thereon, and obtained an order against this plaintiff in such suit restraining him from disposing of any of his property.
The action has been brought to restrain the defendant herein from enforcing in any manner the judgment obtained by her against him. An order to show cause why the defendant herein should not be so restrained from proceeding on her judgment pending the trial of this suit, is returnable before this court and is the subject of this motion.
Rule 65(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that no stay or injunctive order can be granted ‘ except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred * * *.’ No security has been given. The temporary stay heretofore granted must be vacated, and further stay pending determination of the action denied at this time. In view of the foregoing, it is unnecessary to consider the merits of the application for the stay pending the determination of the suit.