Ig. Roth, Inc., Appellant, v. Rebecca Rosenthal, Respondent

Ig. Roth, Inc., Appellant, v. Rebecca Rosenthal, Respondent. First Department, December 31, 1913. Appeal — when action on undertaking may be enjoined pending appeal to Court of Appeals. Where, after the commencement of an action in the Oity Court of Few York, upon an undertaking given on appeal to the Appellate Division from a judgment of the Supreme Court in favor of the plaintiff, and before the time to answer has expired, the defendant in the original action took an appeal to the Court of Appeals from an affirmance by the Appellate Division, he is entitled under section 1309 of the Code of Civil Procedure to a temporary injunction restraining the action upon the undertaking. Appeal by the plaintiff, Ig. Roth, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of October, 1913, denying plaintiff’s motion for an injunction pendente lite. Alfred B. Nathan, for the appellant. Franklin Taylor, .for the respondent. [MAJORITY — Dowling, J. :] Dowling, J. : Rebecca Rosenthal commenced an action in September, 1909, in the Supreme Court of Westchester county against Ig. Roth, Inc., to' recover on a check for $500. Plaintiff therein recovered a judgment from which an appeal was taken to the Appellate Division, and on such appeal an undertaking' was given by the American Bonding Company in the sum of $578.34. The judgment was affirmed July 25, 1913 (Rosenthal v. Roth, Inc., 158 App. Div. 907), and the judgment of affirmance thereon duly entered July 31, 1913. On September 19, 1913, Rebecca Rosenthal commenced an action in the City Court of New York against the American Bonding Company of Baltimore upon its undertaking aforesaid, to recover the amount of said judgment. On September 25,1913, before the time to answer in the City Court had expired, Ig. Roth, Inc., duly took an appeal to the Court of Appeals from the judgment, and furnished to the plaintiff in the Westchester county suit an undertaking perfecting the appeal and providing, among other things, for the payment of the judgment as affirmed, if the Court of Appeals should affirm the same. The plaintiff herein has commenced this action to prevent Rebecca Rosenthal from further prosecuting the City Court suit and obtaining judgment therein against the American Bonding Company, on the ground that he indemnified said company from any damage accruing to it from said undertaking, and that if Rebecca Rosenthal should obtain the payment of any judgment recovered by her in the City Court action, as she is financially irresponsible, he never would be able to reimburse himself for the sum which he would thus be obliged to pay under his indemnity to the bonding company. We are of the opinion that' sufficient facts were shown to justify the granting of a temporary injunction. Section 1309 of the Code of Civil Procedure provides as follows: ££"x" * * Where an appeal to the Court of Appeals from that judgment or order is perfected, and security is given thereupon, to stay the execution of the judgment or order appealed from, an action shall not be maintained upon the undertaking given upon the preceding appeal until after the final determination of the appeal to the Court of Appeals. ” The undertaking herein complies with this provision of the Code, and the plaintiff, therefore, has the right to have any action upon the undertaking stayed until the Court of Appeals shall finally pass upon the judgment now on appeal before it. The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion for an injunction pendente lite granted, with ten dollars costs. Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.