11 Paige Ch. 223 | New York Court of Chancery | 1844
The master properly allowed, as part of the damages sustained by the issuing of the injunction, the fees for services, in relation to the sale, which the master would have to perform the second time in consequence of the sale being stopped, and also the expense of re-advertising the sale of the mortgaged premises. But the master is not entitled to commissions except where the property, which he is directed by the decree to sell, is actually sold by him. The vice chancellor has, therefore, properly disallowed the charge of ten dollars for half commissions. So much of the taxable costs of the defendants as was necessary to obtain a dissolution of the injunction, may also be properly considered as damages which they have sustained by reason of the injunction; so as to enable them to recover those costs of the sureties, in the injunction bond, if they are unable to collect them of the complainants in the suit.
The language of the condition of the bond, and of the second clause of the 31st rule of this court, under which rule the bond in this case was taken, is undoubtedly broad enough to embrace the necessary counsel fees, which the defendants have been obliged to pay out in order to procure the dissolution of the injunction. For the necessity of paying such counsel fees is an actual damage which the defendants have sustained by reason of the injunction. Upon certain appeals to this court, and upon appeals from this court to the court for the correction of errors, the statute authorizes the appellate court, in its discretion, to award damages to the respondent upon affirming the decree, &c. for the delay and vexation caused by such appeal. (2 R. S. 618, § 35.) Under that statutory provision the court for the cor
It is true, there are damages of a different description which the defendant usually sustains by the granting of an injunction which ought not to have been granted. And the principal object of the second clause of the 31st rule was to protect the defendant against such damages. So also in the case of the breach of warranty, the principal object of the covenant is to remunerate the grantee for the loss of his land, in case of eviction. And the necessary expenses of the defence in that case, and of the
The other charges, for the personal services, &c. of the parties in attending the sale and going to see and consult with counsel, and the charge of the solicitor for attending to advise them at the sale of the property, are not damages recoverable under the condition of the bond, and must be disallowed. • Neither party is to have costs against the other, on this appeal.