144 N.Y.S. 610 | N.Y. App. Div. | 1913
The defendant on a bond conditioned to pay damages by reason of an injunction has recovered the value of the services of his attorney and counsel for the preparation and trial of the case. The defendant unsuccessfully opposed the motion for the injunction, and urges that it was necessary to try the issues to dispose of it, as the judgment in his favor ended it. While counsel fees incurred for the purpose of the trial of the case are often not allowable as damages under the bond (Newton v. Russell, 87 N. Y. 527, 531; Hovey v. Rubbertip Pencil Co., 50 id. 335; Randall v. Carpenter, 88 id. 293, 298), yet where the party enjoined has without avail resisted the issuance of the injunction, or, if granted ex parte, has exhausted his remedy to vacate it by means other than by trial of the issues, such counsel fees have been allowed. (Andrews v. Glenville Woolen Co., 50 N. Y. 282; Disbrow v. Garcia, 52 id. 654; Harter v. Westcott, 155 id. 211; Youngs v. McDonald, 56 App. Div. 14; affd., 166 N. Y. 639; Brooks v. Racich Asbestos Mfg. Co., 137 App. Div. 280.) The question
Order appealed from reversed, with ten dollars costs and disbursements, and motion to confirm referee’s report denied, without costs.
Jbnics, P. J., Burr, Oarr and Putnam, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.