within the action which is to be given right of way; whether the dominant action is being prosecuted with skill, zeal and integrity; whether there is a risk of collusion; if the dominant action is in another forum, whether it affords an adequate remedy. * * *' (Emphasis supplied.)
Obviously the plaintiff here would not have an adequate remedy in the New York proceedings. One of the purposes of foreign attachment is to secure a fund out of which plaintiff's claim may be paid after it is reduced to judgment. By its alertness, plaintiff has secured a partial fund and we can see no reason why we should release it to enable defendant to proceed in another forum that it feels will be of greater convenience to it. For these reasons, defendant's motion for stay in Civil Action No. 24280 and defendant's motion for dismissal of Civil Action No. 24280 will be denied.
And Now, June 25, 1958, It Is Ordered and Decreed as follows:
1. Plaintiff's motion for preliminary injunction in Civil Action No. 24281 is Denied.
2. Defendant's motion for stay in Civil Action No. 24281, disposed of under No. 1 above, is, for the purposes of clarity, hereby Denied.
3. Defendant's motion to dismiss in Civil Action No. 24281, although disposed of under No. 1 above, is treated as a motion for summary judgment and for the purposes of clarity, summary judgment is hereby entered in favor of the defendant dismissing said action.
4. Defendant's motion for stay in Civil Action No. 24280 is Denied.
5. Defendant's motion to dismiss in Civil Action No. 24280 is Denied.
Memorandum and Order Sur Motion of Defendant To Amend Order of June 25, 1958.
Defendant moves for a modification of our Opinion and Order filed in this matter on June 25, 1958. The facts are sufficiently stated therein and therefore will only be repeated here in broad outline.
Plaintiff, (Netherlands) as a holder of two negotiable promissory notes for $ 60,000. each, instituted suit in the Common Pleas Court of Philadelphia County against the defendant-maker for failure to honor said notes at maturity. The action was then removed to this Court. The two notes in question were part of a series of four, each in the amount of $ 60,000.
A few days after this suit was begun, defendant instituted an action in the Southern District of New York, wherein it joined as parties-defendant all the holders of the notes, including Netherlands Trading Society, seeking inter alia the rescission of the transaction out of which the notes were issued.
In concomitant motions, Sentry moved the New York Court to enjoin Netherlands from proceeding in the Eastern District of Pennsylvania, and moved this Court to stay or dismiss the instant suit. Our determination denying Sentry's motions preceded the New York Court's granting Sentry's motion. (See Memorandum of Bicks, D.J., filed July 8, 1958 in the case of Sentry Corporation v. Conal International Corp., D.C., 164 F.Supp. 770.
In view of the Southern District's Opinion, the following Order is hereby entered:
And Now, July 24, 1958, No. 4 of our Order of June 25, 1958 is modified to read as follows:
4. Defendant's motion for stay in Civil Action No. 24280 is Granted pending the final determination in Civil Action No. 130-119, Southern District of New York, or until further Order of this Court.