3 N.Y.S. 549 | The Superior Court of the City of New York and Buffalo | 1888
Section 620 of the Code of Civil Procedure provides, in a case of this kind, that the party applying for an injunction must give an undertaking, executed by him, or by one or more sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding a sum specified in the undertaking, as he may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto.
The defendant contends that the discontinuance of the action by plaintiff is, in effect, a decision by the court that the plaintiff was not entitled to the injunction; and cites several authorities to sustain that proposition. But none of the cases cited by him present the same state of facts that is presented in this case. In Palmer v. Foley, 71 N. Y. 106, an injunction was obtained. -On appeal to the general term, the order of injunction was modified, and defendant was allowed to put in a supplemental answer, on condition that the plaintiff might discontinue on payment of costs. The answer was served.