UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 22, 1951
FULLER et al.
AMERICAN MACHINE & FOUNDRY CO. et al.
The opinion of the court was delivered by: MCGOHEY
Upon all the facts and circumstances of this case, I believe that the order of Judge Irving R. Kaufman, D.C., 91 F.Supp. 710 requiring the bond of $ 3,500 should not be vacated.
Baker v. MacFadden Publications, 300 N.Y. 325, 90 N.E.2d 876, does not require a different result, as plaintiffs urge. The New York Court of Appeals there decided that the Appellate Division was in error in assuming that an order requiring a bond, made at the beginning of a stockholders' suit, could not thereafter be vacated or modified. The court restated the familiar rule to the contrary. But the power to vacate or modify also includes the power to continue in effect an order previously made if, on all the facts and circumstances, the court is of the opinion that justice so requires. That is the situation here. Despite the clear implication of my opinion on a previous motion, D.C., 95 F.Supp. 764, the proposed amended complaint is verified, not by any of the new solicited plaintiffs, but only by the wife of the original plaintiff. Accordingly, the motion is denied.
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