Opinion
October 16, 1908.
Max Brown [ Joseph M. Brown with him on the brief], for the appellants.
Arnold W. Sherman [ Alexander Cameron with him on the brief], for the respondent.
This appeal is from an order granting an injunction pendente lite, made at Special Term. The action is brought to vacate and set aside a judgment of the Municipal Court in favor of one Mendelson against the plaintiff in this action. The record discloses that the defendant Mendelson brought an action in the Municipal Court against the plaintiff, and that the defendant Rosenthal, before whom the action was tried, lost jurisdiction by the failure of the court to attend at the time and place to which the trial had been adjourned. Subsequently, and on December 23, 1907, judgment was entered against the telephone company after trial of the plaintiff's side of the case before Justice Rosenthal and a jury. Neither the company nor its attorney had any knowledge of this trial until January fifteenth following, when it received notice of the entry of the judgment. The time had then expired in which a motion could be made in the Municipal Court to vacate and set aside the judgment under the provisions of the Municipal Court Act. On the following day, January sixteenth, the defendant Freeman, a marshal of the city of New York, levied upon money of the telephone company in the hands of its attorney, and paid the full amount of the judgment to the defendant Van Wart, the clerk of the Municipal Court. This action was then commenced, and an order has been made enjoining, during the pendency of the action, Van Wart from paying the money to Mendelson or his attorney Brown, both of whom were alleged to be insolvent, and restraining the defendants from taking any further action or proceeding in the Municipal Court action. It is contended by the appellants: First, that the injunction was improperly granted because the plaintiff had given but one undertaking, while section 613 of the Code required two unless the full amount of the judgment, including interest and costs, was paid by plaintiff into the court in which the action was commenced.
The plaintiff presented an undertaking when it obtained the order to show cause upon the return of which the order from which this appeal is taken was granted, conditioned to pay all damages caused by the issuance of the injunction if improperly granted, and the learned justice at Special Term before granting the order required a second undertaking to be given, conditioned as required by the Code of Civil Procedure, for the payment of the judgment and all damages, interest and costs sustained by the defendants, not exceeding $250. As the full amount of the judgment, including interest and costs, had been paid into court by the marshal on execution, section 613 had been complied with.
Second. That the plaintiff's right to an injunction depended upon the nature of the action, and because no complaint showing the nature of the action was presented to the court an injunction could not be granted.
This contention is based upon the assumption that the injunction was under the provisions of section 603 of the Code, but the learned justice at Special Term held that the application was made under the provisions of section 604, to prevent the doing of an act tending to render the judgment ineffectual, and, therefore, no complaint was required to be presented or served with the moving papers.
Third. That the moving papers were served upon the defendant Mendelson, a Hebrew, on Saturday, which was a holy day to him, and such service was invalid and void under the provisions of chapter 367 of the Laws of 1839. This statute was expressly repealed by chapter 349 of the Laws of 1847. (See Martin v. Goldstein, 20 App. Div. 203.)
Fourth. That the plaintiff has a sufficient and adequate remedy at law by moving before the court which granted the judgment to vacate and set it aside. In this contention the plaintiff is mistaken. ( Lackner v. American Clothing Co., 112 App. Div. 438.)
The order must be affirmed, with ten dollars costs and disbursements.
WOODWARD, JENKS, HOOKER and GAYNOR, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.