103 N.Y.S. 53 | N.Y. App. Div. | 1907
This action was commenced to require the individual defendants to account for their conduct as officers of the defendant Utopia Laud Company, and to annul an annual meeting of the corporation. At the commencement of the action the plaintiff obtained- an injunction restraining the defendants and each of them from al'L acts, including the'annual election of officers or the removal of the present officers and directors from office, with an order to show cause why an injunction should not be continued during the pendency of tíie
It seems to be settled that the undertaking 'cannot be enforced until the action is finally determined. In Williams v. Montgomery (148 N. Y. 519) the Court of Appeals reviewed the judgment appealed from in order to determine whether or not the plaintiff was entitled to the preliminary injunction at the time it was granted, so that the question as to the liability of the sureties upon the undertaking should not be foreclosed by the final judgment, which simply
“ The decision of the Special Term, if allowed to stand, was a determination of the case. .But when an appeal was perfected by the execution of the bond required by the Code, the final decision was postponed until ,that appeal was decided. In the. meantime,, the defendant has no- claim .to an- Order of reference to assess- the dam- .' ages.” In New York Security & Trust Co. v. Lipman (83 Hun, 569) , - a -temporary injunction had been previously granted, from which an appeal was taken by the defendants. The' order granting the .injunction was reversed
From these cases it would appear that a referee to assess the defendant’s damages should not be appointed until by the final judgment in the action it is determined that the plaintiff was not entitled to the injunction. The interlocutory judgment sustaining the demurrer to the complaint is not such a final determination as would justify the court in granting an order of reference. The motion as originally made being based, as it was, upon a final determination of the court sustaining the demurrer entered on default, the court was justified in granting the order, but when that judgment was resettled by stating that it was made after hearing counsel for the plaintiff as well as for the defendant, and the defendant had appealed from that judgment, the right of the court to proceed to assess the damages was suspended until the determination of the appeal, and the court should then have vacated the order of reference-This, of course, would be without prejudice to a renewal of the motion for a reference after the action had been finally determined.
If this is the correct view, then the original order which was appealed from should be affirmed, with ten dollars costs .and disbursements to the respondent, but the order denying the motion to vacate the order of reference should be reversed", with ten dollars costs and disbursements to the appellant, and the order of reference vacated, with ten dollars costs.-
Patterson, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Original order affirmed, with ten dollars costs and disbursements; order deflying motion to vacate order of reference reversed, with ten dollars costs and disbursements, and order vacated, with ten dollars costs. Order filed.
See New York Security & Trust 0o. v, Mydenstéin (7Ó Hun, 216). — [Rep.