Apollo Stationery Co. v. Pilmar

Morris E. Spector, J. Defendants seek to resettle an order denying an injunction pendente lite and vacating a temporary restraining order wherein it was provided that the undertaking given to secure defendants under the terms of the temporary restraining order was cancelled. It was the intention of this court that such cancellation would he prospective in nature but defendants have asserted that the surety company takes the position that the cancellation would relieve them of all liability for the period of the effectiveness of the temporary restraining order. Although the surety is entitled to be relieved of all liability after the date of the order denying the temporary injunction (see Matter of Middlebrook, 280 N. Y. 380), the undertaldng was given to secure damages occurring prior to the vacation of the stay (see Musgrave v. Sherwood, 76 N. Y. 194) and therefore must remain in effect as to that period and may not be cancelled until either damages have been assessed thereunder or until plaintiff is ultimately successful and the matter finally adjudicated (Vitagraph Co. of America v. Stewart, 170 N. Y. S. 527; Lorbeer v. Barefield, N. Y. L. J., Jan. 9, 1947, p. 111, col. 5; see, also, Newberry Co. v. Baker, 239 Mo. App. 1130). Accordingly, the prior order will be modified. Resettled order signed.