N. Y. Rep.] Opinion of the Court, per WILLARD BARTLETT, J.

issued, and there were no damages and costs within the purview of the undertaking recovered in any action by the Brace Company; hence there is no liability by the sureties on such undertaking. (Gillet v. Bank of America, 160 N. Y. 549; Robertson v. O. E. Co., 146 N. Y. 20; Coyne v. Weaver, 84 N. Y. 390.)

Frank Harding and Charles L. Bullymore for Frank A. Kraft, respondent.

WILLARD BARTLETT, J. This is an action at law against the sureties upon an undertaking given under section 611 of the Code of Civil Procedure.

In 1907 the plaintiff corporation commenced an action in the Municipal Court of Buffalo against William H. Leonard and Ristie N. Leonard to recover $180, which the plaintiff claimed as interest due upon a chattel mortgage covering certain furniture and fixtures contained in a hotel in Buffalo which the plaintiff had contracted to sell to the Leonards. Issue was joined in the Municipal Court by the service of an answer. After the joinder of issue the Leonards began an equity suit in the Supreme Court against the W. H. Brace Company (the plaintiff herein), demanding judgment that the chattel mortgage should be canceled and set aside and also seeking therein to recover unpaid interest upon the chattel mortgage. To procure an injunction in this equity suit it was necessary to give security, and accordingly Frank A. Kraft and Samuel L. Goldstein (the defendants in the present action) made and executed an undertaking whereby they jointly and severally undertook to and with the W. H. Brace Company that the Leonards, being the plaintiffs in the equity suit, would pay to the W. H. Brace Company, being the defendant therein, "all damages and costs which may be recovered by it in said action stayed by said injunction and also all damages and costs that may be awarded to it in this action in which the injunction order is granted, not exceeding the sum of one thousand dollars." It is this undertaking upon which the present action is brought.

Opinion of the Court, per WILLARD BARTLETT, J. [Vol. 196.

The W. H. Brace Company interposed an answer in the injunction suit denying the allegations of the complaint. For a further defense and counterclaim it set up the execution and delivery of the chattel mortgage and the default of the Leonards in making payment of the same and prayed for a decree of foreclosure. Upon the trial the defendant (the plaintiff herein) prevailed and judgment was rendered directing that the chattel mortgage should be foreclosed. There was a deficiency of $3,132.90 upon the foreclosure and judgment was docketed against the Leonards for that amount. Execution upon this judgment was returned wholly unsatisfied.

Section 611 of the Code of Civil Procedure requires that an undertaking upon an injunction to stay the trial of an action brought for money only must secure the party enjoined in two respects: (1) The payment of all damages and costs which may be recovered by him in the action stayed by the injunction; and (2) the payment of all damages and costs that may be awarded to him in the action in which the injunction order is granted.

The action stayed by the injunction in the present case was the Municipal Court suit for $180 interest on the chattel mortgage. No demand is made in the complaint in the present case for the recovery of that sum, so that phase of the case does not call for any further consideration. The sole claim of the plaintiff is to enforce the undertaking to the extent of $1,000, the amount specified therein, on account of damages and costs awarded to it in the action in which the injunction order was granted. No costs were awarded, so that feature is also eliminated. We have only to deal with the question of damages. The appellant contends that the amount of the deficiency judgment represents its damages under the last clause of section 611; but we think that this view involves an incorrect construction of the provisions of the Code relating to security upon injunction. The word "damages" in section 611 does not include a recovery upon an equitable counterclaim interposed in an injunction suit in respect to which counterclaim the defendant is the actor and

occupies the position of a plaintiff. It relates to damages which the enjoined party may be able to show that he has sustained by reason of the injunction under section 623 of the Code of Civil Procedure which provides for the ascertainment of such damages by the court or by a referee or by a writ of inquiry. The proceeding to ascertain such damages, whichever method may be adopted, is a proceeding in the action in which the injunction order is granted, and if any damages are awarded to the enjoined party they are awarded in that action, and hence fall within the precise phraseology of the last clause of section 611. There was no effort to prove any damages by resort to the procedure prescribed by section 623, and, indeed, the trial court expressly found that the appellant derived a benefit from being enabled to obtain a speedy foreclosure of its chattel mortgage in the injunction suit.

Inasmuch as the proof does not show that the appellant has sustained any damages, there is no loss which the sureties can properly be compelled to make good under the contract contained in their undertaking. The judgments below were, therefore, right and should be affirmed, with costs.

CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, WERNER and CHASE, JJ., concur.

Judgments affirmed.

In the Matter of TILBERT MEYER, Appellant, v. CONSOLIDATED ICE COMPANY, Respondent.

Supplementary proceedings-corporations - improper service of order in supplementary proceedings upon foreign corporation. It is not sufficient service of an order in supplementary proceedings, by which a foreign corporation is required to make discovery on oath concerning its property, to deliver such order to a person designated by the corporation as one upon whom a summons might be served in accordance with the General Corporation Law and section 432 of the Code of Civil Procedure, but such service must be made in accordance with section 2452 of the Code upon an officer of the corporation. Matter of Meyer v. Consolidated Ice Co., 132 App. Div. 265 affirmed.

(Argued October 7, 1909; decided November 30, 1909.)

APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 7, 1909, which reversed an order of Special Term denying a motion to set aside service of an order for examination in supplementary proceedings and granted said motion.

The following question was certified: "Can supplementary proceedings against a foreign corporation be commenced only by service upon an officer of the corporation as prescribed in section 2452 of the Code of Civil Procedure?"

Carl S. Stern, Benjamin Tuska and Gustavus A. Rogers for appellant. The construction of sections 432, 433 and 2452 of the Code of Civil Procedure by the Appellate Division works a hardship, militates against public convenience and should not be adopted unless the clear language of the statute compels. (Pierson v. People, 79 N. Y. 424.) The reading together of sections 432, 433 and 2452 of the Code of Civil Procedure discloses the true intent of the legislature, which is that an order of examination must be served (§ 433) upon a person upon whom (§ 432) a summons must be served. If an officer of a corporation is served, then service will be sufficient if made upon any officer specified in section 432 unless the court specifies a particular officer (§ 2452), that is, unless the court in its order specifies some particular officer. If it specifies no officer, then the judgment creditor may select the person upon whom to effect service that is to initiate the proceeding. (Black v. Canal Co., 22 N. J. Eq. 130; People ex rel. Huber v. Feitner, 71 App. Div. 479; Matter of Dawes, 108 App. Div. 174; Davis v. Supreme Lodge, 165 N. Y. 159; County of Orange v. Ellsworth, 98 App. Div. 275; Woods v. Supervisors, etc., 136 N. Y. 403; Regina v. Greenland, 15 L. T. Rep. [N. S.] 589; Endlich on Interp. of Statutes, 219; Bradner on Supp. Pro. [2d ed.] 714.)

Beno B. Gattell and Thomas D. Adams for respondent. There is an exclusive Code provision for service of an order commencing supplementary proceedings upon a corporation

N. Y. Rep.]

Opinion of the Court, per HISCOCK, J.

which reads, service upon a corporation is sufficient if made upon an officer to whom a copy of the summons must be delivered, unless the judge specially designates the officer. It must be an officer, it may be an officer to whom a copy of the summons must be delivered or it may be an officer designated by a judge, but it must be an officer. That is imperative and jurisdictional, according to the plain intent of the language. (Code Civ. Pro. § 2452.)

HISCOCK, J. The defendant is a foreign corporation and an order was made in supplementary proceedings requiring it to appear and make discovery on oath concerning its property. The only service of this order was by delivery to a person designated in accordance with the provisions of section 16 of the General Corporation Law and section 432 of the Code of Civil Procedure, as one upon whom a summons might be served. The question is whether such service was sufficient. I think that it was not.

* * *

Section 432 of the Code provides that personal service of a summons upon a foreign corporation "must be made by delivering a copy thereof, within the state as follows: 2. To a person designated for the purpose as provided in section 16 of the General Corporation Law."

Section 433 of the Code enacts that the provisions "relating to the mode of service of a summons apply likewise to the service of any process or other paper, whereby a special proceeding is commenced in a court, or before an officer * * except where special provision for the service thereof is otherwise made by law." Supplementary proceedings of course are special proceedings.

Section 2452 of the Code, in the article relating to supplementary proceedings, after providing for service upon a natural person of an injunction order or an order to attend and be examined, provides: "Service upon a corporation is sufficient if made upon an officer, to whom a copy of a summons must be delivered, where a summons is personally served upon the corporation; unless the officer is specially desig