Opinion
March 14, 1967
Appeal and cross appeal from order entered December 29, 1966, are disposed of and the order unanimously modified on the law and the facts as herein indicated. The plaintiff and the defendant-intervenor both claim title and right to possession of the certificate representing 75,000 shares of stock now in custody of the Sheriff. Such certificate shall remain in the custody of the Sheriff pending trial providing the following conditions are met. The defendant-intervenor shall deliver to the Sheriff an undertaking in the amount of $1,500 to indemnify the Sheriff for all expenses (CPLR 7103, subd. [b]) and a further undertaking in the amount of $50,000 to indemnify the plaintiff for any losses it might suffer by reason of such impounding. The bond heretofore filed by plaintiff may be cancelled conditioned upon plaintiff's filing with the Sheriff an undertaking in the amount of $50,000 to indemnify defendant-intervenor against any loss should defendant-intervenor be adjudged owner of the certificate. Plaintiff may obtain possession of the certificate upon filing an undertaking in the total amount of $400,000. The undertakings shall be acceptable to the Sheriff and copies thereof shall be served upon opposing counsel and filed with the Clerk of the court. The provision for consents and for an immediate trial are stricken from the order. The parties, however, should not unreasonably delay a trial of the issues. As so modified the order appealed from is otherwise affirmed, without costs or disbursements to any party. Settle order on notice.
Concur — Botein, P.J., Stevens, Capozzoli, Rabin and McNally, JJ.