Opinion
February 4, 1958
In this action on an undertaking, the plaintiffs appeal from an order dismissing the complaint and directing entry of judgment for the defendant, and denying a cross motion by the plaintiffs to strike the answer and for summary judgment. The bond was furnished as a condition for a stay pending the determination by this court of an application for an injunction pendente lite, in an action by a minority stockholder for injunctive and other relief. The parties, by stipulation, consented to the furnishing and acceptance of the bond as a condition to the stay. By a decision in the appeal from the order denying an injunction pendente lite ( Gottfried v. Gottfried Baking Co., 1 A.D.2d 994), this court held that the sale of the fixtures sought to be enjoined was properly authorized for the first time on May 3, 1956. The bond which is the subject matter of this action, unlike the bonds in the companion appeals, was required to be furnished on a day subsequent to that crucial date. It must therefore be held that on this record there is no defense to the action. The order is reversed on the law, the plaintiffs' motion to strike the answer and for summary judgment is granted, with costs to the appellants, and the case will be set down for an assessment of damages. Settle order.
Concur — Botein, P.J., Breitel, Rabin, Frank and Stevens, JJ.