I dissent and would affirm. I cannot accept the view of the majority that the dismissal of the Harsh action on the ground of forum non conveniens constituted a final determination that the ‘ ‘ plaintiff was not entitled to an attachment of the property of said defendants,” and that he had no right to bring an action in this forum. Such a conclusion confuses the doctrine of forum non conveniens with lack of jurisdiction. Implicit in a- dismissal for reasons of forum non conveniens is the recognition that the court did have jurisdiction.
In the instant case, the attachment against New York property of the appellants Minskoff was legal and subject to no infirmity. As was conceded in the plaintiff’s motion for reargument, “ The process was valid on its face. The action being for a money *88judgment and the Minskoffs being nonresidents, their property was per se subject to attachment. (CPLE 620.1) ” It conferred upon the court jurisdiction in rem. That it was valid was recognized by the motion to dismiss; this motion was not based on any alleged jurisdictional defect but on the ground of forum non conveniens. And when the judgment of dismissal was affirmed by this court (24 A D 2d 842, mot. for lv. to app. to Court of Appeals den. 17 N Y 2d 421), this constituted not a determination that the warrant of attachment was invalid but an affirmation that Special Term had not abused its discretion in declining to retain jurisdiction for reasons of convenience and expediency The court below correctly held: ‘1 The attachment fell solely by reason of the court’s refusal, in the "exercise of its discretion, to retain jurisdiction; there was no final decision that plaintiff was not entitled to an attachment.”
And there having occurred no determination on the merits against the attaching creditor nor a finding that the attachment itself was invalid, there is no valid basis for a reversal of the order granting the respondent’s motion for summary judgment.
Apollinaris Co. v. Venable (136 N. Y. 46) fully supports the affirmance of the order appealed from. In that case, as the majority on this appeal recognizes, the injunction involved was vacated because of the plaintiff’s contemptuous interference with a commission to take testimony. But this did not constitute an adjudication (p. 49) “ that the plaintiff at the time the temporary injunction was issued, ‘ was not entitled thereto ’, and especially would it be contrary to principle so to adjudge against the sureties of"the undertaking.” So, the holding was that the fault of the plaintiff, occurring subsequent to the grant of the temporary injunction, was not sufficient to permit a challenge to the validity of the temporary injunction when issued. A fortiori, there is less force to a claim that an attachment, valid per se when issued, suddenly loses its legality because the court, in its discretion does not choose to retain jurisdiction.
Also to be noted is that in the Supplementary Practice Commentary to CPLR 6212 (McKinney’s Cons. Laws of N. Y., Book 7B, Suppl., p. 18) is to be found the following comment “ Attention should also be directed to the terms of the undertaking, since the plaintiff does not become liable thereunder merely because the attachment is vacated, but only where it is decided that the plaintiff ‘ was not entitled ’ to the attachment. Vacation of the attachment for a technical reason would, accordingly, not make the plaintiff liable on the bond. ’ ’ (Emphasis added.)
There is here present no element of law, logic or equity requiring the imposition of liability upon an undertaking given in *89support of a concecLedly valid attachment. But for a twist of circumstance, this court may well have directed that jurisdiction be retained, as this court unanimously did in Katz v. Liston (22 A D 2d 205). In any event, jurisdiction was present herein subject to retention or rejection, at the court’s discretion.
Stevens, J. P., Tilzeb. and McNally, JJ., concur with Steuer, J.; McGtvern, J., dissents in opinion.
Order and judgment reversed, on the law, with $50 costs and disbursements to appellants, defendant’s motion for summary judgment denied, and plaintiffs’ motion for summary judgment granted, with $10 costs, and an assessment of damages directed. The appeal from the order entered on November 3,1966, denying plaintiffs’ motion for reargument is dismissed, without costs or disbursements.